X. Xav. Sp.
18-9-7— 17c.
NAVAL WAR COLLEGE
International Law
Situations
WITH SOLUTIONS AND NOTES
1907
$
GOVERNMENT PRINTING OFFICE
WASHINGTON
1908
P li E F A C E .
This summary, prepared by Prof. George Grafton Wilson, of
Brown University, the lecturer on international law, of the discus-
sions of the international law situations submitted to the confer-
ence of 1907 is published for the information of the naval service.
The situations were formulated by Professor Wilson in con-
sultation with the president and staff of the Naval War College,
and were discussed by them and the officers composing the confer-
ence as fully as the time at their disposal would permit. It is
the aim of the War College to direct discussion to situations that
may arise with reference to which the law and precedents are not
obvious or well settled, and suggestions from officers of the service
are invited.
J no. P. Merrell,
Rear-Admiral, U. S. Navy, President.
U. S. Naval War College,
Newport, R. I., November 25, 1907.
3
TABLE OF COXTE^TS.
Page.
Situation I. — Fugitive from Cuban justice at Guantanamo.
Solution 9
Notes 9
General 9
Chinese lease to Germany 10
Chinese lease to Russia 11
Chinese lease to Great Britain 11
Chinese lease to France 11
Hongkong convention 12
General character of leases 12
Creation of a servitude 13
State Department's opinion of Chinese leases 14
Practice under Chinese leases 15
United States and territory relinquished or ceded by
Spain in 1898 16
Coaling and naval stations in Cuba 17
Fugitive criminals in leased area 19
Jurisdiction over vessels in leased area 20
Reciprocal obligations : 21
Competence of commandant of naval station 21
Conclusion 22
Situation II. — Status of United States auxiliary collier in
foreign harbor.
Solution 23
Notes 23
General 23
Property rights against a foreign war vessel 24
Salvage and foreign war vessels 25
Military supplies belonging to a foreign sovereign 26
Domestic regulations as to foreign war vessels in
time of peace 27
Status of public vessels other than war vessels 29
Status of a troop ship 30
Status of a public mail vessel 30
Liability for pilotage - 31
5
<> TABLE OF (ONTENTS.
Situation II — Continued. Page.
Notes — Continued.
Collision of public and private vessels of different
states 32
Collision between United States naval auxiliary col-
lier and vessel in foreign harbor 35
Status of United States auxiliary vessels 42
Regulations in regard to collisions 43
R£suru€ 44
Conclusion 45
Situation III. — Right of captured vessel to flag.
Solution '. 46
Notes 46
Early opinion 46
Later opinion 47
Case of the Malacca 48
Seizure of enemy differs from seizure of neutral ves-
sels 50
Regulations as to seizure 51
Regulations in regard to use of flag 54
Opinions as to use of flag 55
Summary 57
Relations of the neutral state 57
Position of the war vessel of the United States 58
Right of captured neutral vessel to flag 58
Rights of war vessel of State X 59
Conclusion 59
Situation IV. — Resistance to capture by enemy merchant-
man.
Solution 60
Notes 60
Status of merchant vessels as regards capture 60
Resistance in general 61
Regulations as to resistance 61
Neutral goods on armed vessels 62
Early British opinion as to merchant vessels 63
Opinions of text writers 65
Neutral property on enemy merchant vessel 68
Preemption 69
Preemption in war on land 72
American practice and opinion 72
Conclusion 73
Situation V. — Treatment of neutral merchantmen.
Solution — 74
Notes 75
Discussion in 1905 75
TABLE OF CONTENTS 7
Situation V — Continued. Page.
Notes — Continued.
Restriction on movements of vessels with prize 76
Regulations as to destruction of seized vessels 77
British cases and opinions 80
The Knight Commander case 84
t (a) Attitude of the United States 84
(6) Decision of Vladivostok prize court 85
(c) Appeal from the Vladivostok decision 87
(d) Decision on the appeal 87
(e) Review of the case 88
(/) Professor Woolsey's opinion 89
(g) Later Russian regulations 91
Case of the Koiv-Shing 91
Professor Holland's Opinion 92
United States opinion as to court and prize 93
Opinions of writers on destruction of prize 94
Rules of the Institute of International Law 99
Usual procedure 100
Practical objections to destruction 101
Opinion of the British Commission 102
Treaty provisions in regard to contraband cargo 104
Resume . 106
Conclusion 108
Situation VI. — Violation of blockade, carriage of contra-
band, collier service.
Solution 109
Notes 110
Reasons for Situation VI 110
Provision of the Declaration of Paris. 1856 110
Position of the United States 111
(a) Instructions to blockading vessels and cruis-
ers 1 111
(&) Blockade 112
(c) Notifications to neutrals 112
Opinion of Paradier-Fodere 114
Conclusion as to the blockade 114
Contraband trade 115
Vladivostok court on the Allanton 115
(a) Opinions of the case 118
(o) Decision of St. Petersburg court on appeal 119
Opinion of United States court on carriage of contra-
band 121
Conclusion as to liability for carriage of contraband- 322
Liability of neutral vessel for service as collier 122
Conclusion as to treatment of enemy collier serving
enemy fleet 125
Conclusion 125
b TABLE OF CONTENTS.
Page.
Situation VII. — Insurgency and commerce.
Solution 127
Notes 127
The United States law 127
Opinions of Mr. Bayard 128
Opinion of Mr. Blaine 131
Opinion of Mr. Sherman 132
Case of the South Portland 135
English opinion 135
Belgian opinion 136
Professor Moore's opinion 136
Trade in contraband 136
Conclusion 137
Situation VIII. — Wireless telegraphy.
Solution 138
Notes 138
Nature of service 138
Control of submarine cables 139
Agreement between United States and Germany 141
Report of Inter-Departmental Board 143
Report of General Board, Navy 143
International Agreement, 1903 : 146
Berlin Wireless Convention, 1906— 149
General control of messages 151
Control of telegraph in time of war 153
Liability of vessels transmitting messages 156
Wireless telegraphy at Chifu 157
Wireless telegraphy as a news-gathering agency 159
Opinions as to wireless service 164
Regulations of Institute of International Law, 1906— 174
Summary 175
General conclusions 176
International Law Situations,
WITH SOLUTIONS AND NOTES.
Situation I.
While a United States war vessel is at anchor within
the area of the coaling station leased from Cuba at Guan-
tanamo a fugitive from Cuban justice comes on board.
The properly authorized Cuban officers demand that the
fugitive be immediately surrendered to them.
How should the request of the Cuban officers be treated?
solution .
An alleged fugitive from Cuban justice coming on
board of a war vessel of the United States within the area
of the coaling station leased from Cuba at Guantanamo
should under ordinary circumstances be turned over by
the commander of the United States war vessel to the
commandant of the station.
The subsequent treatment of the alleged fugitive, by
the commandant should be governed by the terms of the
lease (article 4) and by such general or special instruc-
tions as may have been issued by the United States Gov-
ernment.
NOTES ON SITUATION I.
General. — This Situation I is proposed in order to illus-
trate the complicated relationships introduced by the re-
cent practice of transfer of jurisdiction, or the transfer of
the right to exercise state authority, without the transfer
of sovereignty.
Jurisdiction in general. — The jurisdiction over terri-
tory may be based on sovereignty, lease, or other ground.
10 FUGITIVE FROM (THAN rUSTICE.
The jurisdiction based on sovereignty is in general ex-
clusive, though exceptions are sanctioned by international
law and international practice. The jurisdiction based
upon lease is naturally dependent upon the conditions of
lease. The leases vary.
Chim s, l ( ase to Germany. — The lease of the Kiaochow
region by China to Germany March 6, 1898, provides
that—
His Majesty the Emperor of China is willing that German
troops should take possession of the above-mentioned territory at
any time the Emperor of Germany chooses. China retains her
sovereignty over this territory, and should she at any time wish
to enact laws or carry out plans within the leased area she shall
be at liberty to enter into negotiations with Germany with refer-
ence thereto: Provided always, That such laws or plans shall not
be prejudicial to the German interests. Germany may engage in
works for the public benefit, such as waterworks, within the ter-
ritory covered by the lease without reference to China. Should
China wish to march troops or to establish garrisons therein, she
can only do so after negotiating with and obtaining the express
permission of Germany.
* :|: *****
III. During the continuation of the lease China shall have no
voice in the government or administration of the leased territory.
It will be governed and administered during the whole term of
ninety-nine years solely by Germany, so that the possibility of
friction between the two powers may be reduced to the smallest
magnitude. The lease covers the following districts: * * *
Chinese ships of war and merchant ships and the ships of war and
merchant ships of countries having treaties and in a state of
amity with China shall receive equal treatment with German
ships of war and merchant ships in Kiaochow Bay during the
continuance of the lease. Germany is at liberty to enact any reg-
ulation she desires for the government of the territory and harbor,
provided such regulations apply impartially to the ships of all
nations, Germany and China included.
IV. Germany shall be at liberty to erect whatever light-houses,
beacons, and other aids to navigation she chooses within the ter-
ritory leased and along the islands, and coasts approaching the
entrance to the harbor. Vessels of China and vessels of other
countries entering the harbor shall be liable to special duties for
the repair and maintenance of all light-houses, beacons, and other
aids to navigation which Germany may erect and establish. Chi-
nese vessels shall be exempt from other special duties. (U. S.
Foreign Relations, 1900, 3S4.)
CHINESE LEASES. 11
Chinese lease to Russia. — In the treaty leasing Port
Arthur to Kussia March, 27 ? 1898, there were the follow-
ing articles:
Art. I. It being necessary for the due protection of her navy in
the waters of north China that Russia should possess a station
she can defend, the Emperor of China agrees to lease to Russia
Port Arthur and Talienwan, together with the adjacent seas, but
on the understanding that such lease shall not prejudice China's
sovereignty over this territory.
Art. IV. The control of all military forces in the territory
leased by Russia and of all the naval forces in the adjacent seas,
as well as of the civil officials in it, shall be vested in one high
Russian official, who shall, however, be designated by some title
other than governor-general (tsungtu) or governor (hsunfu). All
Chinese military forces shall without exception be withdrawn
from the territory, but it shall remain optional with the ordinary
Chinese inhabitants to remain or to go, and no coercion shall be
used toward them in this matter. Should they remain, any Chi-
nese charged with a criminal offense shall be handed over to the
nearest Chinese official to be dealt with according to Article VIII
of the Russo-Chinese treaty of 1860.
Art. VI. The two nations agree that Port Arthur shall be a
naval port for the sole use of Russian and Chinese men-of-war,
and be considered as an unopened port so far as the naval and
mercantile vessels of other nations are concerned. As regards
Talienwan, one portion of the harbor shall be reserved exclu-
sively for Russian and Chinese men-of-war, just like Port Arthur,
but the remainder shall be a commercial port, freely open to the
merchant vessels of all countries.
Chinese lease to Great Britain. — The provisions of the
convention for the lease of Wei-hai-wei to Great Britain^
July 1, 1898, are somewhat different.
The territory leased shall comprise the island of Liu Kung and
all the islands in the bay of Wei-hai-wei and a belt of land ten
English miles wide along the entire coast line of the bay of Wei-
hai-wei. Within the above-mentioned territory leased Great
Britain shall have sole jurisdiction.
It is also agreed that within the walled city of Wei-hai-wei
Chinese officials shall continue to exercise jurisdiction, except so
far as may be inconsistent with naval and military requirements
for the defense of the territory leased.
Chinese lease to France. — A convention for the lease of
Kuang Chau Wan by China to France was made on May
27, 1898, and ratified January 5, 1900.
12 FUGITIVE FROM CUBAN JUSTICE.
Article I.
The Chinese Government, in consideration of its friendship for
France, has given by a lease for 99 years Kuang Chau Wan to the
French Government to establish there a naval station with coaling
depot, but it is understood that this shall not offset the sovereign
rights of China over the territory ceded.
Article III.
The territory shall be governed and administered during the 99
years of the lease by France alone, so that all possible misunder-
standing between the two countries may be obviated.
The inhabitants shall continue to enjoy their property; they
may continue to inhabit the leased territory and pursue their
labors and occupations, under the protection of France, so long as
they respect its laws and regulations. France shall pay an equit-
able price to the native property owners for the land which it may
wish to acquire.
Article V.
Steamers of China as well as the ships of the powers having
diplomatic and commercial relations with her shall be treated
within the leased territory in the same manner as in the opened
part of China.
France may issue all the regulations she may wish for the ad-
ministration of the territory and of the ports and particularly
levy light-house and tonnage dues destined to cover the expense
of erecting and keeping up lights, beacons, and signals, but such
regulations and dues shall be impartially used for ships of all
nationalities.
Article VI.
If cases of extradition should occur, they shall be dealt with
according to the provisions of existing conventions between France
and China, particularly those regulating the neighboring rela-
tions between China and Tongking.
Hongkong convention. — The convention with Great
Britain for the extension of the Hongkong territory
signed June 9, 1898, provided as to jurisdiction that " If
cases of extradition of criminals occur, they shall be
dealt with in accordance with the existing treaties be-
tween Great Britain and China and the Hongkong regu-
lations."
General character of leases. — Such provisions show dif-
ferences in the terms and conditions of leases, the general
LEASES AS SERVITUDES. 13
idea being that the jurisdiction in whole or in part may
pass to the lessee, while the lessor retains the sovereignty.
By the terms of some of these conventions leasing terri-
tories, the rights ordinarily attributed to sovereignty are
passed to the lessee, as the right to construct fortifications,
establish naval stations, levy taxes, etc. Such rights,
.however, must be specific, as otherwise the right to exer-
cise state authority resides exclusively in the state possess-
ing sovereignty over a given area. Chief Justice Mar-
shall, in the Schooner Exchange v. M'Faddon, in 1812,
stated the matter clearly.
The jurisdiction of the nation within its own territory is neces-
sarily exclusive and absolute. It is susceptible of no limitation
not imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its own
sovereignty to the extent of the restriction, and an investment of
that sovereignty to the same extent in that power which could
impose such restrictions.
All exceptions, therefore, to the full and complete power of a
nation within its own territories, must be traced up to the consent
of the nation itself. They can flow from no other legitimate
source.
This consent may be either express or implied. In the latter
case, it is less determinate, exposed more to the uncertainties of
construction; but, if understood, not less obligatory. (7 Cranch,
U. S. Supreme Court Reports, 116.)
Creation of a Servitude. — The effect of these conven-
tions leasing territory of one state to another state for
coaling stations, etc., is to create a restriction upon the ex-
ercise of territorial jurisdiction by the lessor state in
favor of a lessee state. This permits within the territory
of the lessor state the exercise of powers ordinarily ex-
clusively in the state having sovereignty and thus creates
a positive servitude which implies that " a state is under
obligation to permit within its territory another state to
exercise certain powers." (Wilson and Tucker, Inter-
national Law, 146.)
Hall says of servitudes in general,
It is usual in works on international law to enumerate a list
of servitudes to which the territory of a state may be subjected.
Among them are the reception of foreign garrisons in fortresses,
14 FUGITIVE FROM CUBAN JUSTICE.
fishery rights in territorial waters, telegraphic and railway privi-
leges, the use of a port by a foreign power as a coaling station, an
obligation not to maintain fortifications in particular places, and
other derogations of like kind from the full enforcement of sov-
ereignty over parts of the national territory. These and such like
privileges or disabilities must, however, be set up by treaty or
equivalent agreement; they are the creatures not of law but of
compact. The only servitudes which have a general or particular
customary basis are, the above-mentioned right of innocent use of
territorial seas, customary rights over forests, pastures, and
waters for the benefit of persons living near a frontier, which
seem to exist in some places, and possibly a right to military
passage through a foreign state to outlying territory. In their
legal aspects there is only one point upon which international
servitudes call for notice. They conform to the universal rule ap-
plicable to "jura in re aliena." Whether they be customary or
contractual in their origin, they must be construed strictly. If,
therefore, a dispute occurs between a territorial sovereign and a
foreign power as to the extent or nature of rights enjoyed by the
latter within the territory of the former, the presumption is
against the foreign state, and upon it the burden lies of proving
its claim beyond doubt or question. (International Law, 5th ed.,
p. 159.)
State Department opinion of Chinese leases. — A mem-
orandum for the office of the Solicitor of the Department
of State by Mr. Van Dyne on January 27, 1900, sum-
marizes the Chinese leases.
By the leases made by the Chinese Government of Weihaiwei,
Kiaochow, and Port Arthur to Great Britain, Germany, and Rus-
sia, respectively, the jurisdiction of China over the territories
leased is relinquished during the terms of the leases. In the case
of Weihaiwei, leased to Great Britain, it is expressly provided
that " within the territory leased Great Britain shall have sole
jurisdiction."
In the lease of Kiaochow to Germany, it is provided that China
shall have no voice in the government or administration of the
leased territory, but that it shall be governed and administered
during the whole term of the lease by Germany; that Germany is
at liberty to enact any regulation she desires for the government
of the territory. Chinese subjects are allowed to live in the ter-
ritory leased, under the protection of the German authorities, and
there carry on their business as long as they conduct themselves
as law-abiding citizens. Provision is made for the surrender to
the Chinese authorities of fugitive Chinese criminals taking refuge
in the leased territory. The Chinese authorities are not at liberty
CHINESE LEASES, OPINIONS AND PRACTICE. 15
to send agents into the leased territory to make arrests. The
lease declares that China " retains her sovereignty over this terri-
tory."
In the lease of Port Arthur to Russia it is provided that the
control of all military forces, as well as the civil officials in the
territory, shall be vested in one high Russian official; that all
Chinese military forces shall be withdrawn; that the Chinese in-
habitants may remain or go, as they choose; that if they remain,
any Chinese charged with a criminal offense shall be handed over
to the nearest Chinese official to be dealt with. [Mr. Conger says
that the Russian legation informs him that this last provision is
not correctly translated, and that, construing it in connection with
article 8 of the treaty of 18G0, the Russian Government has the
right and does try Chinese for crimes committed against Rus-
sians.] This lease is expressly declared on the understanding
that it " shall not prejudice China's sovereignty over this terri-
tory.'"
As it is expressly stipulated in the leases that China retains
sovereignty over the territory leased, it could doubtless be as-
serted that such territory is still Chinese territory and that the
provisions of our treaties with Chiua granting consular jurisdic-
tion are still applicable therein. But, in view of the express re-
linquishment of jurisdiction by China, I infer that the reservation
of the sovereignty is merely intended to cut off possible future
claims of the lessees that the sovereignty of the territory is per-
manently vested in them. The intention and the effect of these
leases appear to me to have been the relinquishment by China,
during the term of the leases, and the conferring upon the foreign
power in each case of all jurisdiction over the territory. (U. S.
Foreign Relations, 1900, 388.)
Practice under Chinese leases. — This summary of the
nature of jurisdiction in the areas held under lease from
China shows a considerable difference in extent of juris-
diction. Since these leases were negotiated practice has
shown that Chinese authority was for the most part at an
end within the leased areas. The states holding the
leases have not established uniform regulations for the
government of the leased territories. There have been
frequent conflicts and differences of opinion on the sub-
ject of the exercise of jurisdiction. The general result
has been favorable to the exercise of full power in the
leased territory by the lessee as against third states. The
principle upon which decisions have been made is that
the grant of a specific right carries with it the privilege
16 FUGITIVE FROM CUBAN JUSTICE.
of such action as is necessary for the exercise of the right.
Wherever definite reservations or agreements occur in the
treaty or convention granting the lease, such reservations
or agreements are considered to have full force and valid-
ity as against any general grant.
United States and territory relinquished or ceded by
Spain in 1898. — By Article I of the treaty of December
10, 1898, between the United States and Spain (30 U. S.
Statutes at Large, 1754) as a result of the Spanish- Amer-
ican war, it is provided:
Article I. Spain relinquishes all claim of sovereignty over and
title to Cuba : and as the island is, upon its evacuation by Spain,
to be occupied by the United States, the United States will, so
long as such occupation shall last, assume and discharge the obli-
gations that may under international law result from the fact of
its occupation for the protection of life and property.
It is to be observed that by this promise Spain merely
" relinquishes all claim of sovereignty over and title to
Cuba." The following article goes further than merely
to relinquish sovereignty:
Article II. Spain cedes to the United States the island of Porto
Rico and other islands now under Spanish sovereignty in the West
Indies and the island of Guam in the Marianas or Ladrones.
While sovereignty and title to Cuba was relinquished,
Spain's claim to the other islands mentioned in the second
article was ceded to the United States. The status of the
areas mentioned in the two articles would therefore be
unlike. Porto Rico and the other islands mentioned in
the second article would come immediately under the sov-
ereignty of the United States. That the act of Spain is
unlike in character in the two instances is fully recognized
in the subsequent articles of the treaty which uniformly
refer to " the sovereignty relinquished or ceded " " as the
case may be."
By a later article of the treaty it is provided :
Article XI. The Spaniards residing in the territories over
which Spain by this treaty cedes or relinquishes her sovereignty
shall be subject in matters civil as well as matters criminal to the
jurisdiction of the courts of the country wherein they reside, pur-
COALING AND NAVAL STATIONS. 17
suant to the ordinary laws governing the same; and they shall
have a right to appear before such courts and to pursue the same
course as citizens of the country to which the courts belong.
This right of the Spaniards to be subject " to the juris-
diction of the courts of the country wherein they reside "
would be a right which would generally extend to citizens
of other states under the " most favored nation treat-
ment."
Further, in accordance w T ith Article XVI :
It is understood that any obligations assumed in this treaty by
the United States with respect to Cuba are limited to the time of
its occupancy thereof; but it will, upon the termination of such
occupancy, advise any government established in the island to
assume the same obligations
The implication of this article is that a responsible gov-
ernment would be established in Cuba and that this gov-
ernment would be advised to assume the same obligations
in regard to the civil and criminal jurisdiction which the
United States had assumed.
Coaling and naval stations in Cuba. — The so-called
" Piatt amendment " of March 2, 1901. provided:
That in fulfillment of the declaration contained in the joint res-
olution approved April twentieth, eighteen hundred and ninety-
eight, entitled " For the recognition of the independence of the peo-
ple of Cuba, demanding that the Government of Spain relinquish
its authority and government in the island of Cuba, and to with-
draw its land and naval forces from Cuba and Cuban waters, and
directing the President of the United States to use the land and
naval forces of the United States to carry these resolutions into
effect," the President is hereby authorized to " leave the govern-
ment and control of the island of Cuba to its people " so soon as
a government shall have been established in said island under a
constitution which, either as a part thereof or in an ordinance ap-
pended thereto, shall define the future relations of the United
States with Cuba, substantially as follows :
Among the promises defining the relations of the
United States with Cuba the seventh is as follows:
That to enable the United States to maintain the independence
of Cuba, and to protect the people thereof, as well as for its own
defense, the government of Cuba will sell or lease to the United
States lands necessary foi coaling or naval stations at certain
25114—08 2
18 FUGITIVE FROM CUBAN JUSTICE.
specified points, to be agreed upon with the President of the
United States. (31 U. S. Statutes at Large, 895.)
The articles of this amendment became an appendix to
the constitution of Cuba promulgated on the 20th of May,
1902. By an agreement between the United States and
Cuba, February 16-23, 1903, the Republic of Cuba leased
certain areas in Guantanamo and in northern Cuba to the
United States for the purposes of coaling and naval sta-
tions. In regard to Article I of this agreement, which
defines the areas leased, the second and third articles of
the agreement say :
Article II.
The grant of the foregoing article shall include the right to use
and occupy the waters adjacent to said areas of land and water,
and to improve and deepen the entrances thereto and the anchor-
ages therein, and generally to do any and all things necessary to
fit the premises for use as coaling or naval stations only, and for
no other purpose.
Vessels engaged in the Cuban trade shall have free passage
through the waters included within this grant.
Article III.
While on the one hand the United States recognizes the con-
tinuance of the ultimate sovereignty of the Republic of Cuba over
the above-described areas of land and water, on the other hand
the Republic of Cuba consents that during the period of the occu-
pation by the United States of said areas under the terms of this
agreement the United States shall exercise complete jurisdiction
and control over and within said areas, with the right to acquire
(under conditions to be hereafter agreed upon by the two Govern-
ments) for the public purposes of the United States any land or
other property therein by purchase or by exercise of eminent
domain, with full compensation to the owners thereof.
These areas, commonly called Guantanamo and Bahia
Honda, are therefore leased to the United States and not
ceded. The United States, therefore, has only a quali-
fied jurisdiction over these regions and not sovereignty,
as in Porto Rico and the Philippines, and the conditions
of exercise of jurisdiction in these leased areas are accord-
ingly unlike the conditions within the areas over which
the United States exercises sovereignty.
FUGITIVE CRIMINALS IN LEASED AREA. 19
The exercise of jurisdiction in leased areas varies ac-
cording to the provisions of the lease.
Fugitive criminals in leased area. — The agreement of
July 2, 1903, leased certain areas in Guantanamo and in
Bahia Honda in Cuba to the United States for naval or
coaling stations. Article IV of this lease provided that
" Fugitives from justice charged with crimes or misde-
meanors amenable to Cuban law, taking refuge within
said areas, shall be delivered up by the United States
authorities on demand by duly authorized Cuban
authorities."
Under this article of the lease a fugitive from Cuban
justice taking refuge within the leased area should be
delivered to the duly authorized Cuban authorities. The
agreement upon the areas made February 16-23, 1903,
distinctly specifies that the lease covers the described
areas of land and water. Therefore under ordinary cir-
cumstances a fugitive from Cuban justice entering the
leased areas would be surrendered.
By Article I of the agreement of February 16-23, 1903,
" the following described areas of land and water " are
leased to the United States by Cuba. The terms of the
agreement specify that the lease covers certain adjacent
waters within definite limits and carries also " the right
to use and occupy the waters adjacent to said areas of
land and water." The United States obtained complete
jurisdiction over certain waters and qualified rights in
adjacent waters.
Within the area outside either of the above-mentioned
waters the ordinary course in regard to fugitives from
justice would be followed. The waters adjacent to the
waters over which the United States is granted complete
jurisdiction are subject to the use of the United States
" generally to do any and all things necessary to fit the
premises for use as coaling or naval stations only, and for
no other purpose." The ordinary course in regard to the
fugitives from justice would therefore be followed there.
The terms of this lease proclaim, as in the cases of the
Chinese leases, that it is jurisdiction and not sovereignty
that is passed by the lease. The conditions of the lease of
20 FUGITIVE FROM CUBAN JUSTICE.
Cuban territory to the United States do not fix a limit of
a period of time, as in the Chinese leases, but the United
States agrees to pay a fixed sum per year so long as it
shall occupy and use the leased area. Further, the United
States undertakes as part equivalent for this lease " to
maintain the independence of Cuba and to protect the
people thereof." Thus the United States assumes an
additional obligation over and above the obligations usu-
ally assumed in the Far East.
The status of the leased areas therefore needs defini-
tion.
The question next raised would naturally be whether
a Avar vessel of the United States under international law
and under the terms of the treaties with Cuba should sur-
render a fugitive from Cuban justice.
Jurisdiction over vessels in leased area. — The jurisdic-
tion over a given vessel will depend upon the character of
the vessel and upon its relation to the sovereign and to
the other parties concerned. If it is a private merchant
vessel of a third state not party to the lease, its relations
may be unlike those of a similar vessel of the parties to
the lease. The relations of public vessels would be unlike
those of private vessels.
The regulations for the government of the Navy of the
United States, 1905, article 308, state that " The right of
asylum for political or other refugees has no foundation
in international law. In countries, however, where fre-
quent insurrections occur, and constant instability of
government exists, usage sanctions the granting of asy-
lum; but even in the waters of such countries officers
should refuse all aplications for asylum except when
required by the interests of humanity in extreme or ex-
ceptional cases, such as the pursuit of a refugee by a mob.
Officers must not directly or indirectly invite refugees to
accept asylum." According to this regulation asylum
should not be granted to a refugee under other than
exceptional circumstances.
Within both land and water areas leased to the United
States fugitives from Cuban justice would under Article
VESSELS IN LEASED AREA. 21
IV " be delivered up by the United States authorities on
demand by duly authorized Cuban authorities."
Granting that the fugitive escapes to a war vessel of
the United States while the vessel is within the area
which is under the complete jurisdiction of the United
States, would the provisions of the treaty apply to the
war vessel and should the commander " deliver up " the
fugitive under the terms of the treaty ? Of course, Cuba
could make a law by which a political offense might be a
crime or misdemeanor. Should the commander when
within the leased area deliver up a political refugee whom
he might retain under other circumstances?
By Article VI of the Constitution of the United States,
" This Constitution and the Laws of the United States
which shall be made in pursuance thereof and all treaties
made or which shall be made, under the authority of the
United States ; shall be the supreme Law of the Land."
An agreement of the nature of this lease would become
in effect law and would bind all officials within the area.
Further, the agreement was made with the specific pur-
pose of prescribing a method by which fugitives from
Cuban justice escaping into the area within the military
control of the United States should be recovered by the
proper Cuban authorities.
To set up a claim that a war vessel of the United States
would be exempt from an agreement made with special
reference to the establishment of a naval base and the con-
trol of its area would be inconsistent with a reasonable
interpretation of the terms of the agreement.
Reciprocal obligations. — There is also a reciprocal
agreement which, in addition to prescribing that fugi-
tives from Cuban justice " shall be delivered up by the
United States authorities," provides that —
On the other hand, the Republic of Cuba agrees that fugitives
from justice charged with crimes or misdemeanors amenable to
United States law, committed within said areas, taking refuge in.
Cuban territory, shall, on demand, be delivered up to duly author-
ized United States authorities.
Competence of commandant of naval station. — There
may sometimes be doubt as to the identity of the criminal,
22 FUGITIVE FROM CUBAN JUSTICE.
the proper method of procedure, the extent of the author-
ity of the Cuban official, the nature of the crime, or other
matters with which the commander of a war vessel could
hardly be expected to be familiar.
The commandant of the naval station would naturally
be familiar with such matters because acting under an
agreement relating thereto. It would seem safest and in
the end a proceeding little open to question to turn a
fugitive from Cuban justice escaping to a war vessel
within the leased area at Guantanamo over to the com-
mandant of the naval station.
The commandant would be bound to turn the fugitive
from justice over to the duly authorized Cuban authori-
ties. Of course, the commandant would be under obli-
gation to satisfy himself of the identity of the criminal,
of the proper authorization of the officials demanding
that the fugitive be surrendered, and of such other facts
as would secure the fulfillment of Article IV of the lease
of 1903.
As the attitude of the United States is in general unfa-
vorable to the harboring of fugitives from justice on board
war vessels, as the practical inconveniences of having
such a person on board a war vessel are considerable, and
as Article IV of the lease provides for the giving up of
fugitives within the leased areas " on demand by the
proper Cuban authorities," it would seem proper to re-
gard a war vessel of the United States as subject to the
terms of the lease and as being of the nature of a floating
naval station for the time being within the leased area
and under provisions of the lease.
Conclusion. — An alleged fugitive from Cuban justice
coming on board a war vessel of the United States within
the naval coaling station at Guantanamo leased from
Cuba should under ordinary circumstances be turned over
by the commander of the United States war vessel to the
commandant of the naval station.
The subsequent treatment of the alleged fugitive by
the commandant should be governed by Article IV of
the lease and by such general or special instructions as
may have been issued by the United States Government.
Situation II.
A United States auxiliary collier commanded by an
officer appointed by the Secretary of the Navy is in a har-
bor of State X. The collier collides with and injures a
foreign vessel. The owner of the foreign vessel brings
suit against the commander of the collier for damages
under the civil law, claiming that the status of the collier
is uncertain, and that the commander would in any case
be liable as would the commander of a ship of StateX,
the commanders of whose vessels, public and private, are
liable in the civil courts of that state under similar cir-
cumstances.
What position should the senior officer of the United
States take?
SOLUTION.
The senior officer, acting in accordance with principle,
precedent, and regulations, should appoint a board of in-
quiry and maintain that the suit should not be brought
against the master of the auxiliary collier, but that the
claims should be referred to the United States Govern-
ment through diplomatic channels.
NOTES ON SITUATION II.
General. — In this situation the owner of the injured
foreign vessel claims that the status of a United States
auxiliary collier is uncertain. He also claims that even
if the collier was recognized as a public vessel it would be
liable to the same treatment as domestic public vessels un-
der similar circumstances and that the collier could there-
fore be made the defendant in rem or its commander the
defendant in personam in a suit for damages resulting
from a collision.
Claims against public vessels and property in foreign
ports have been made in various forms. These claims
23
24 AUXILIARY COLLIER IN FOREIGN HARBOR.
have involved property rights, salvage and other service,
collisions, and in general such matters as could properly
be subject to national court jurisdiction.
Property rights against a foreign war vessel. — In 1812
Chief Justice Marshall delivered the opinion in the cele-
brated case of the Schooner Exchange v. M'Faddon.
This case involved the very delicate and important in-
quiry, whether an American citizen can assert, in an
American court, property rights igainst a foreign na-
tional vessel. The learned Chief Justice laid down the
fundamental principle —
The jurisdiction of the courts is a branch of that possessed by
the nation as an independent sovereign power.
The jurisdiction of the nation within its own territory is nec-
essarily exclusive and absolute. It is susceptible of no limitation
not imposed by itself. Any restrictions upon it, deriving validity
from an external source, would imply a diminution of its sover-
eignty to the extent of the restriction, and an investment of that
sovereignty to the same extent in that power which could impose
such restriction.
All exceptions, therefore, to the full and complete power of a
nation within its own territories must be traced up to the consent
of the nation itself. They can flow from no Other legitimate
source.
The consent may be either express or implied. In the latter
case it is less determinate, exposed more to the uncertainties of
construction, but, if understood, not less obligatory.
The world being composed of distinct sovereignties, possessing
equal rights and equal independence, whose mutual benefit is pro-
moted by intercourse with each other, and by an intrechange of
those good offices which humanity dictates and its wants require,
all sovereigns have consented to a relaxation in practice, in cases
under certain peculiar circumstances, of that absolute and com-
plete jurisdiction within their respective territories which sov-
ereignty confers.
After a full discussion of various forms of immunity,
the decision continues:
It seems, then, to the court to be a principle of public law, that
national ships of war, entering the port of a friendly power open
for their reception, are to be considered as exempted by the con-
sent of that power from its jurisdiction v
Without doubt the sovereign of the place is capable of destroy-
ing this implication. He may claim and exercise jurisdiction
either by employing force or by subjecting such vessels to the or-
SALVAGE AND FOREIGN WAR VESSELS. 25
dinary tribunals. But until such power be exerted in a manner
not to be misunderstood, the sovereign cannot be considered as
having imparted to the ordinary tribunals a jurisdiction which
it would be a breach of faith to exercise. Those general statutory
provisions, therefore, which are descriptive of the ordinary juris-
diction of the judicial tribunals, which give an individual, whose
property has been wrested from him, a right to claim that property
in the courts of the country in which it is found, ought not, in the
opinion of this court, to be so construed as to give them jurisdic-
tion in a case in which the sovereign power has impliedly con-
sented to waive its jurisdiction.
The arguments in favor of this opinion which have been drawn
from the general inability of the judicial power to enforce its de-
cisions in cases of this description, from the consideration that the
sovereign power of the nation is alone competent to avenge wrongs
committed by a sovereign, that the questions to which such wrongs
give birth are rather questions of policy than of law, that they are
for diplomatic rather than legal discussion, are of great weight,
and merit serious attention, (7 Cranch, U. S. Supreme Court Re-
ports, 116.)
Salvage and foreign war vessels. — Sir William Scott,
in 1820, in a suit for salvage against the Prins Frederik,
said:
I think that the first application for a recompense in the nature
of salvage, ought, in the case of a ship of war belonging to a for-
eign state, to have been made to the representative of that state
resident in this country. In the present case no doubt can be enter-
tained that just attention would have been paid to the application,
and due care taken, after proper information obtained, to have
answered the claim in some form or other, as substantial justice
might seem to require; for it is not reasonable to suppose that
private individuals in this eountry should go unrewarded for
services rendered to ships of foreign governments when they
would have been liberally rewarded for similar services performed
for such ships belonging to their own. (2 Dodson's Admiralty
Reports, 451, 484.)
In the case of the United States frigate Constitution,
carrying machinery, etc., from the Paris Exposition,
stranded on Ballard Point, England, in 1879, and against
which suit was brought for salvage by owner of steam
tug which pulled Constitution off. Sir Robert Phillimore
said:
There is no doubt as to the general proposition that ships of
war belonging to a nation with whom this country is at peace
26 AUXILIARY COLLIER IN FOREIGN HARBOR.
are exempt from the civil jurisdiction of this country. I have
listened in vain for any peculiar circumstances to take this case
out of that general proposition. It has happened to me more than
once, since I have had the honour of sitting in this chair, to have
been requested by foreign states to sit as arbitrator and to make
an award in cases — one of collision and two of salvage. If a
similar request had been made to the court in this case, I would
gladly have undertaken the duty sought to be imposed upon it ;
but I have now only to consider whether there is any authority
for the proposition that when a foreign state refuses to waive the
privilege which it possesses it is competent to this court, neverthe-
less, to treat it as an individual and serve civil process on its
property. I am clearly of the opinion that it would be very
wrong and improper in me to assent to this application on the
part of the owner of the steam tug. (4 Law Reports. Probate
Division, 39.)
This decision denies the right of a British citizen to
compel payment bj T a public vessel for services rendered
when the vessel was in great need.
Military supplies belonging to a foreign sovereign. —
In the case of Vavasseur v. Krupp the question of juris-
diction over the property of a foreign sovereign was
raised. The foreign sovereign involved was the Emperor
of Japan. The case was brought in England and is sum-
marized as follows:
A foreign sovereign bought in Germany shells made there, but
said to be infringements of an English patent. They were brought
to this country in order to be put on board a ship of war belong-
ing to the foreign sovereign, and the patentee obtained an injunc-
tion against the agents of the foreign sovereign and the persons
in whose custody the shells were, restraining them from removing
the shells. The foreign sovereign then applied to be and was made
a defendant to the suit. An order was then made up by the mas-
ter of the rolls, and approved on appeal, that notwithstanding the
injunction he should be at liberty to remove the shells.
In 1877 the British court gave the opinion that prop-
erty of a foreign sovereign in Great Britain could not be
held, saying of the Chancery Division of the High Court
of Justice —
This court has no jurisdiction, and, in my opinion, none of the
courts in this country have any jurisdiction, to interfere with the
property of a foreign sovereign, more especially with what we call
the public property of the state of which he is soverign as distin-
REGULATIONS AS TO AVAR VESSELS IN PEACE. 27
guished from that which may be his own private property. The
courts have no jurisdiction to do so, not only because there is no
jurisdiction as against the individual, but because there is no
jurisdiction as against the foreign country whose property they
are, although that foreign country is represented, as all foreign
countries having a sovereign are represented, by the individual
who is the sovereign. (Law Reports, 9 Chancery Division, 351.)
Domestic regulations as to foreign war vessels in time
of peace. — The attempt to regulate in some detail the en-
trance and sojourn of foreign public vessels has been
made by several states. States having large navies have
not generally made many regulations. Public vessels are
required to respect police, quarantine, sanitary, fiscal, and
harbor regulations.
Article 11 of the Netherlands royal decree of February
2, 1893, provided—
that foreign ships and vessels of war shall respect the existing
police, sanitary, and fiscal laws and regulations, and shall further
submit to all rules and regulations of the port, in both cases to the
same extent as is demanded of the national ships and vessels of
war. (2 Moore, International Law Digest, 593.)
Regulations somewhat similar in scope are in force in
other states.
In the second volume of Professor Moore's monumental
and most valuable work, "A Digest of International
Law." there appears a letter from the Secretary of State
to the Secretar}^ of the Navy in regard to the attitude of
the United States toward such regulations as above men-
tioned:
I have the honor to acknowledge the receipt of the letter from
your Department, dated the 9th of August last, inclosing for an
expression of this Department's views in the matter a copy of a
letter from the Chief of the Bureau of Navigation of the Navy
Department, with inclosures, relative to the propriety and feasi-
bility of issuing an order to naval vessels directing that when
pilots are not employed local foreign laws requiring the employ-
ment of pilots are not to be held to compel the payment of pilot-
age by public vessels.
In reply I have the honor to say that the laws of some of our
States require the payment of pilotage fees when pilots are not
employed, and these laws, by their terms, apply* to all vessels.
28 AUXILIARY COLLIER IN FOREIGN HARBOR.
The doctrine of international law is that all vessels are subject
to the revenue and police regulations, including those in regard to
pilotage, of the territorial waters which such vessels may enter.
In the statement of the doctrine no exception is made in favor of
public vessels.
In Secretary Chandler's letter of July 12, 1884, inclosed in yours,
the statement is made that certain exemptions are allowed by
international law to public vessels; and in Secretary Freling-
huysens letter, also inclosed with yours, the same statement is
made. No authorities are cited in support of the proposition,
while the doctrine above mentioned is stated in Lawrence, Inter-
national Law, pages 223 and 226; Hall, International Law, page
1!>2 ; Pradier-Fodere, International Law, section 2379.
The latter says that " the ports, the roadsteads, the harbors
form a dependency of the national public domain, and the ships
of foreign nations are under the obligation to observe rigorously
the general and special regulations in force in the harbors, road-
steads, and ports."
In view of the foregoing the Department could not advise the
adoption of the rule suggested. (Page 583.)
Regulations in regard to the sojourn in time of peace of
war vessels of a foreign power within the territorial wa-
ters of a given state may be and have been made. The
regulations most frequently have regard to police and
quarantine.
A royal decree of February 18, 1901, regulates in con-
siderable detail the admission of foreign men-of-war to
the harbors of Belgium.
Leopold II, King of the Belgians, to all present and to come,
greetings :
Considering that the time is opportune to regulate, in conform-
ity with international law and the obligations of perpetual neu-
trality, the admission of foreign men-of-war in the waters and
harbors of Belgium;
On the proposition of our Ministers of Foreign Affairs, of War,
and of Railways, Posts, and Telegraphs,
We have ordered and order :
GENERAL DISPOSITIONS IN TIME OF PEACE.
Article I. In time of peace war vessels belonging to foreign
powers may enter freely Belgian harbors of the North Sea and
anchor off said waters within territorial waters, provided that
BELGIAN REGULATIONS. 29
the number of such vessels flying the same flag, including those
already within that zone or in harbor, does not exceed three.
Article II. Foreign men-of-war may not enter the Belgian
waters of the Scheldt, anchor in the roads of Antwerp, nor pene-
trate within the inland waters of the Kingdom without first ob-
taining the authorization of the minister of foreign affairs.
This authorization shall be asked through the medium of the
subinspector of Belgian pilotage at Flushing.
Article III. Foreign men-of-war^ unless especially authorized
by the Government, may not remain longer than two weeks in the
Belgian territorial waters and harbors.
They are required to put to sea within six hours when requested
to do so by the navy administration or the territorial military
authorities, even should the time fixed for their stay not have
expired.
Article IV. Should peculiar circumstances demand it, the Gov-
ernment reserves- the right to modify the above restrictions to the
entrance or stay of foreign men-of-war in Belgian waters and
harbors.
Article V. The dispositions of Articles I, II, and III do not
apply to men-of-war whose admission has been authorized through
diplomatic channels, nor to vessels on board of which happen to
be either a chief of state, a prince of a reigning dynasty, or a
diplomatic agent accredited near the King or Government.
Article VI. Foreign men-of-war in Belgian waters are prohib-
ited from making sketches or taking soundings, as well as from
engaging in landing or firing exercises.
Members of the crew should be without arms when on shore.
Commissioned and noncommissioned officers may carry the arms
which form a part of their uniforms.
Boats plying in the harbors and territorial waters must not be
armed.
Should funeral honors be given on shore, an exemption to para-
graph 2 of the present article may be authorized by the minister
of war on request of the territorial military authorities.
Article VII. Captains of foreign men-of-war are required to
observe the laws and regulations concerning the police, public
health, taxes, and imposts, unless exceptions be established by
particular convention or by international usages.
Status of public vessels other than war vessels. — From
the decisions and regulations it would seem to be estab-
lished that a public vessel of war would not be liable to
the jurisdiction of a local court.
There are, however, many vessels engaged in such serv-
ice as may give rise to questions in regard to exemption.
30 AUXILIARY COLLIER IN FOREIGN HARBOR.
These vessels may be engaged in transport, mail, tele-
graph, collier, or other service for the government of a
state and under state control.
Opinions upon the status of such vessels have gradually
become more clearly defined.
Status of a troopship. — In March, 1842, the Athol, a
British troopship, ran down and sunk the British Ship-
ping Company's brig Jane Clark. Application was made
to recover for the loss.
Doctor Lushington gives his opinion in the case:
Now the first consideration which occurs is this, viz : How far '
could I enforce the execution of the process if it should be granted
and resisted? This is an important point to be considered, in the
first instance, in all cases of this kind, inasmuch as it would, I
conceive, be a very imprudent and scarcely a befitting attempt in
any court to issue a process w T hich it could not enforce, and which,
if resisted, must terminate in a defeat of the authority of the
court. In applying this consideration to the present case the fol-
lowing difficulties suggest themselves as conclusive of the question
which I am now called upon to determine : In the first place, I
feel that I could not enforce the monition if the lords of the Ad-
miralty should refuse to appear; and secondly, assuming that an
appearance should be given on their behalf, and it should be found
that the damage in question was occasioned by the fault of tho
troopship, the Athol, or those on board her, I could not enforce
the payment of that damage as against the lords of the Admiralty
under the circumstances of this case. But there are also other
considerations which induce me to refuse this application. As far
as my own experience extends in the practice of this court, I am
not aware of any case in which a similar process has been issued ;
on the contrary, in a case which was decided by Lord Stowell,
and which is the only case that I can recollect in any degree ap-
proaching to the circumstances of this case, Lord Stowell ex-
pressly refused to issue any monition upon the ground that " he
was satisfied that the lords commissioners of the Admiralty would
be disposed to do justice upon being convinced that wrong had
been done, and that the occurrence complained of had actually
taken place." (1 Robinson's Admiralty Reports, 374.)
Status of a public mail vessel. — The Parlement Beige,
a vessel belonging to the King of the Belgians, unarmed
and carrying mails, collided with a private British vessel,
the Daring. In the Court of Appeal in 1880 it was held,
reversing the decision of the Admiralty Division :
LIABILITY FOR PILOTAGE. 31
As a consequence of the absolute independence of every sover-
eign authority and of the international comity which induces every
sovereign state to respect the independence of every other sover-
eign state, each and every one declines to exercise by means of
any of its courts any of its territorial jurisdiction over the person
of any sovereign or ambassador of any other state, or over the
public property of any state which is destined to public use, or
over the property of any ambassador, though such sovereign, am-
bassador, or property be within its territory, and therefore, but
for the common agreement, subject to its jurisdiction.
In the same case it was also held —
that an unarmed packet belonging to the sovereign of a foreign
state, and in the hands of officers commissioned by him, and em-
ployed in carrying mails, is not liable to be seized in a suit in rem
to recover redress for a collision, and this immunity is not lost
by reason of the packet's also carrying merchandise and passen-
gers for hire. (5 Law Reports, Probate Division, 197.)
Liability for pilotage. — In the case of Symons v. Baker
(K. B. Div., Aug. 4, 1905), the Kharki, a coal vessel
owned by His Majesty's Government, was involved. The
Kharki was a " collier exclusively engaged in going back-
wards and forwards to various ports, carrying coal for
the navy." She flew the Devonport Dockyard flag, but
not the navy flag. She appears in the Navy List under
the heading, " List of small steam vessels, tugs, etc., em-
ployed on harbor service." Her master held a board of
trade certificate issued by the dockyard authorities at
Devonport and acted on instructions received from the
coaling officer at Devonport Dockyard. " He is not an
officer of the royal navy. The crew of the vessel were
engaged at the dockyard under articles of agreement."
It was claimed that the master of such a vessel was liable
to pilotage dues and that the vessel was used for " com-
mercial purposes."
Lord Chief Justice Alverstone, in granting an appeal,
said of the claim that the Kharki was used for " commer-
cial purposes." *
I think there was nothing commercial about this. I think the
facts show, and the learned magistrate does not differ from that,
that the Kharki was being employed as what may be called a coal
tender, and solely as a tender taking coal to the ships of the navy.
32 AUXILIARY COLLIER IN FOREIGN HARBOR.
Therefore, unless some distinction can be drawn between one of
His Majesty's ships performing a more dignified service and one
which was performing, as this vessel was, a most useful but less
dignified service, I do not understand the distinction of u com-
mercial purposes."
Now the vessel in question is clearly a King's ship ; that
is to say, she comes within the words of section 741 of the
Merchant Shipping Act, which are, " shall not, except as
expressly provided, apply to ships belonging to His
Majesty." Of the claim that the master of the Khaarki
would be liable because he ordered the pilotage, it was
said, " He [the master] is the master of the King's ship ;
he acts as master in behalf of the Crown : he is an agent
in the ordinary sense of the word." The remedy would
be by petition of right for the amount of claim. Neither
ship or master could be proceeded against. (X, Asp.
Mar. Law. Cas. 129.)
Collision of public and privav vessels of different
States. — In 1883 the Mexican gunboat I ndependencia ran
down the American schooner Daylight. A dispatch from
Mr. Frelinghuysen, Secretary of State, to Mr. Morgan,
minister to Mexico, shows the attitude of the United
States at that period :
Mr. Frelinghuysen to Mr. Morgan.
Department of State,
Washington, November 15, 18S3.
Sir : Your dispatch, No. 690, of the 21st September, in relation
to the claim of Capt. Fred. L. Blair, of the American schooner
Daylight, has been received.
The note of the 18th of September addressed to you by Mr. Fer-
nandez, a copy of which accompanies your dispatch, has been care-
fully considered. I regret to find that the inquiry made in my
instruction of the 24th of March last (No. 382), and which it is
perceived you submitted to Mr. Fernandez, has not. as I conceive,
been explicitly answered by the Mexican Government. If liability
to the party injured attaches as a result of the Independenoia's
action in running down the American schooner, such liability is
imputable, not to the commander of the gunboat, but to the Mexi-
can Government. If Mr. Fernandez is to be understood .as saying
that an American citizen may, in such a case, maintain legal pro-
ceedings for the recovery of the damages thus claimed directly
against the Government of Mexico in the courts of that Republic,
• CASES OF COLLISION. 33
I have only to observe that I have not heretofore understood that,
under the laws of Mexico, the Government of that country might
be sued in its own courts either by a citizen of the Republic or a
foreigner, without special permission having first been given for
that purpose, and before I could consent to submit the claimant
in the present case to the expense and delay of such a proceeding
it is desirable that I should be exactly informed on that point.
In Mr. Mariscal's note to you of the 3d of March last, that min-
ister, amongst other observations in regard to the claim, says,
" If Captain Blair considered that the Mexican Government is
responsible for the disaster which his vessel suffered, he should
apply directly to the department of war and marine, under whose
jurisdiction the Independencia is. If that department admits the
responsibility of the Government in the matter, all difficulties will
at once disappear," and the same sentiment is reiterated by Mr.
Fernandez in his note to you of the loth ultimo. With reference
to these suggestions I have only to remark that the claim in ques-
tion is presented by the Government in behalf of its injured citi-
zen through the ordinary and only recognized channels of com-
munication between it and that of Mexico, and if by the laws or
administrative regulations of that Republic it is made essential
that the facts should be first investigated by the ministry of war
and marine, it is conceived that the subject should be referred to
that department by the minister of foreign affairs. Such would
be the course pursued by this Government were a similar demand
to be made upon it by that of Mexico. You will at as early a day
as may be convenient bring these suggestions to the attention of
the Mexican minister of foreign affairs, and you will say at the
same time that, upon a careful examination of the facts, this De-
partment reached the conclusion that the Mexican Government
was properly responsible for the damages resulting from the dis-
aster in question, and that the hope is entertained that the min-
ister will see the propriety and equity of an early adjustment of
the claim.
I am, etc., Feed'k T. Frelinghtjysen.
(U. S. Foreign Relations, 1884, p. 343.)
On February 21, 1885, the schooner Lanie Cobb, of
Bangor, Maine, while in the harbor of La Guayra, was
run down by the Ana Eulogia, a vessel under commission
of the Venezuelan Government. Secretary Bayard, writ-
ing to the United States representative in Venezuela after
it had been found difficult to obtain any redress for dam-
ages, said:
At the time of the accident the Ana Eulogia was under com-
mission of the Venezuelan Government, and that Government by
25114—08 3
34 AUXILIARY COLLIER IN FOREIGN HARBOR.
every reasoning is responsible for the damage to the Lanie Cobb
on account of the careless and inexcusable acts of those on board
the former vessel. While, as previously stated, President Crespo's
ownership ought not to have any effect in aggravating damages,
yet his high office places him in a position in which he must be
personally cognizant of the injury done and peculiarly sensitive as
to its redress. (U. S. Foreign Relations, 1885, p. 925.)
An act of Congress provided in the case of the steam-
ship Foscolia, which was in collision with the United
States steamer Columbia:
That the claim of the owners of the British steamship Foscolia,
sunk by collision with the United States steamship Columbia on
the evening of May twenty-eight, eighteen hundred and ninety-
eight, near Fire Island light-ship, for and on account of the loss
of said vessel and cargo, may be submitted to the United States
district court for the southern district of New York, under and in
compliance with the rules of said court sitting as a court of ad-
miralty; and said court shall have jurisdiction to hear and deter-
mine and to render judgment thereupon : Provided, however, That
the investigation of said claim shall be made upon the following
basis : First, the said court shall find the facts attending the loss
of the said steamship Foscolia and her cargo; and, second, if it
shall appear that the responsibility therefor rests with the United
States steamship Columbia, the court shall then ascertain and
determine the amounts which should be paid to the owners, re-
spectively, of the Foscolia and her cargo, in order to reimburse
them for the losses so sustained, and shall render a decree accord-
ingly : Provided further, That the amounts of the losses sustained
by the master, officers, and crew of the Foscolia may be included
in such decree.
That should such decree be rendered in favor of the owners of
the Foscolia and her cargo, the amount thereof may be paid out
of any money in the Treasury not otherwise appropriated.
(United States Statutes at Large, 57th Congress, 1901-1903, Vol.
32, part 1, p. 242.)
The case of the Foscolia is stated as follows :
On the 28th of May, 1898, about 7.45 o'clock, p. m., a collision
occurred, in a fog, about 12 miles southerly and westerly from
Fire Island light-ship, between the U. S. cruiser Columbia and the
British steamship Foscolia, sl freighter owned by the libellants,
which resulted in the total loss of the latter, with all of the cargo
on board and the greater part of the stores and of the personal
effects of the crew. (123 Federal Reporter, 105.)
Claims were made to recover $226,889.36.
CASE OF THE ALEXANDER. 35
The United States admitted that the Columbia did not
show lights and was sounding no fog signals on account
of the existence of a state of war.
The court decided that under the act of Congress the
Foscolia was entitled to damages, even though the com-
mander of the Columbia might be acting under orders.
In this case the libellants took action to ascertain the
amount of damages only by authority of an act of Con-
gress.
Collision between United States naval auxiliary collier
anal vessel in foreign harbor. — The Hongkong Daily Press
of July 5, 1906, gives a summary of the case of the
U. S. N. collier Alexander:
That case was one of in personam against Captain Gove, of
the U. S. S. Alexander, claiming from him personal damages for
the loss alleged to have been sustained by the collision alleged
to have occurred between the Alexander and the plaintiff's junk
in the waters of the harbor. The first consideration for his lord-
ship was, the Alexander was a public armed vessel, the property
of a friendly nation, the United States of America. This ship at
the time the collision was said to have occurred was in the
waters of the colony on the implied invitation of the sovereign
of the British Empire. That implied invitation carried with it
the undertaking that a public armed vessel of the United States
was free from the jurisdiction of that court so long as she de-
meaned herself in a friendly way within the jurisdiction. He
took it that it would not be denied by his learned friend that as
such an armed ship was free from all suits in the colony. It
was necessary to establish that proposition because he wished to
argue that the exemption afforded to the ship covered her as a
unity, as an entity, covered her not merely as so much steel, but
in her capacity as a public armed ship. One of the reasons for
the immunity of a public armed ship, part of the military and
naval force of a friendly nation, was so as not to interfere with
her efficiency. As far as the hull went, it was free from arrest,
and his learned friend, being well aware of that, did not go to
the court for a warrant for the ship's arrest. The assumption
was that the United States was willing to do justice to foreigners
as well as to her own subjects, and the remedy for any person
who suffered from collision with one of her ships was through the
proper diplomatic channels. The immunity of a public armed
ship was not confined to her hull only, it extended to her
machinery, her guns (which were not a part of the ship), and to
her captain and crew. Take the captain and the crew out of the
36 AUXILIARY COLLIER IN FOREIGN HARBOR.
ship and she was reduced to the character of United States prop-
erty, but she was no longer an armed ship, part of the military
and naval force, which that power had sent into Asiatic waters.
Take the guns out of her and the same remark applies, though,
the Alexander, being a collier, she would be less efficient without
her crew than without her guns. Taking her crew out of her
would render her inefficient to perform the services required of
her. How could they contend that that which would render
her still less efficient could be taken from her, could be made
liable to this jurisdiction? We have in this colony a law,
which was repealed in England in 1861, which allows im-
prisonment for debt of the person of the debtor. A judgment
against the captain renders him liable to be imprisoned if he
could not find the money; the plaintiffs had the right to im-
prison the debtor. ,
The Chief Justice. Your proposition is not confined to Hong-
kong?
The Attorney-General. Obviously not.
Proceeding, he said that the general principle was that they
must do nothing to interfere with the efficiency of the ship or
the purpose for which she was sent to those waters by a foreign
sovereign. Captain Gove had come here from Shanghai out of
respect for the jurisdiction of this court and the ship had gone
to sea without a captain. That was a serious interference with
the domestic economy of the ship, an interference with her effi-
ciency. His lordship had before him an affidavit from the officer
in command of the station to the effect that he had received tele-
graphic orders that Captain Gove was to rejoin his ship as soon
as he could get away. The captain of the Alexander could not
be used as if he were the captain of an American merchant ship.
The Chief Justice. Does the question of extraterritoriality
come into it? Actions may be brought against foreign govern-
ments.
The Attorney-General. If they submit.
Mr. Slade argued that a foreign man-of-war was in the same
position as a British man-of-war. Supposing a ship of war en-
gaged on important state duty ran down any vessel, if the officer
in charge of her set foot on shore he might be served with a writ
and become immediately subject to the jurisdiction of that court.
It was suggested in that case that Captain Gove was acting in the
course of his duty as captain of the vessel that ran down the
junk. Their allegation was that he was not acting properly in
Jcommand, that he was not doing his duty as a servant of his
state. They alleged that he had been guilty of neglect. If they
admitted there was neglect the plaintiffs had no case. They
said the captain was not doing his duty as he ought to have
done. Therefore the commands of his sovereign could not avail
CASE OP THE ALEXANDER. 37
him. His orders were to proceed with all due and proper care
from the side of the U. S. S. Baltimore, then anchored at Kowloon
Bay. He in fact disobeyed these orders, and by his negligence
injures the plaintiffs.
The attorney-general said there was no allegation of neglect in
the writ.
Mr. Slade said the writ was in the usual form. Continuing, he
said that when an action was brought against a British warship
and judgment given, the damages were recovered from the cap-
tain personally, and he submitted that the captain of a foreign
warship could not be in a better position than the captain of a
British warship.
The attorney-general pointed out that the difference between
the captain of a British warship and the captain of a foreign
warship was that the former was always within the jurisdiction
of the British courts. The King's writs ran in all the King's
ships.
v The Chief Justice reserved his judgment.
The above-mentioned case was brought to the supreme
court, Admiralty jurisdiction, Hongkong, China, against
Captain Gove, who commanded the U. S. naval auxiliary
Alexander. The Alexander had coaled the U. S. S. Bal-
timore, and " when leaving the latter's side to proceed to
her anchorage " collided with the junk, Tung On Tai. A
naval board of inquiry placed the blame on the junk.
The owners of the junk brought suit under the civil law
against the master of the Alexander. On request the
governor of Hongkong directed the Crown lawyers to
conduct the case in behalf of the United States. The
judgment in this case involves several conclusions of suffi-
cient importance to warrant reproduction in full, par-
ticularly as such decisions are not under ordinary circum-
stances easily accessible.
The chief justice, Sir Francis Piggott, said :
In this case the attorney-general moved on behalf of the
Crown at the instance of the Government of the United States to
dismiss an action brought in the Admiralty jurisdiction of this
court by the owners of the junk Tung On Tai and the owners of
her cargo against Arthur E. Gove, the commander of the U. S. S.
Alexander in respect of a collision which occurred in the waters
of the harbour. The Alexander is an armed public vessel, the
property of the Government of the United States. The commander
was in the service and pay of that Government and under the con-
38 AUXILIARY COLLIER IN FOREIGN HARBOR.
trol of the Secretary of the Navy -of the United States. At the
period of collision he was employed in active service conveying
coal and other stores for the use of the public vessels of the
United States Government on the East Asiatic Station and at the
actual time of collision he was in command of the ship engaged
on such service. The ground of the attorney-general's protest is
that the court has no jurisdiction to entertain this action, this
method of proceeding being based upou the course pursued by the
Admiralty advocate in the case of the Constitution. The circum-
stances of this case are, however, different, for whereas the suit
commenced in the case of the Constitution was in rem for salvage
services, this suit is in personam, i. e., against the commander
for damages in respect of a collision caused by his alleged negli-
gent navigation. It is not, so far as I know, settled that the
principle that ships of war belonging to a nation with whom this
country is at peace, are exempt from the civil jurisdiction of our
courts, applies to the commanders of such ships when, In he
alleged negligent performance of their duties, they cause damage
which under other circumstances would render them liable to an
action.
The exterritoriality of foreign ships of war was considered at
length in the case of the Parle men t Beige, and in the course of
the judgment there are certain dicta which seem, though not in
so many words, to warrant the proposition for which the learned
attorney-general contended, namely, this exterritoriality of the
warships extended in some measure to her officers and crew. If
these dicta do bear this extension the commander of the Alex-
ander could not be sued for acts committed by him in the course
of the performance of his duty. These dicta are as follows :
" Has the Admiralty division jurisdiction in respect of a collision
to proceed in ran against a ship which is at the time of the pro-
ceedings the property of a foreign sovereign, is in the possession,
control, and employ of the sovereign by means of his commis-
sioned officers and is a public vessel of his state?" Again : " The
first question really raises this, whether any part of the public
property of any sovereign authority in use for national purposes
is not as much exempt from the jurisdiction of any court as is
the person of every sovereign." And again : " A public armed
ship constitutes a part of the auxiliary force of a nation, acts
under the immediate and direct command of the sovereign, is
employed by him in national objects. He has many and powerful
motives for preventing those objects from being defeated by the
interference of a foreign state. Such interference cannot take
place without affecting his power and dignity." And finally :
" The point and force of this argument in the Prinz Frederilc is
that the public property of every sovereign state, being destined
to public use, cannot with reason be submitted to the jurisdiction
CASE OF THE ALEXANDER. 39
of courts of such states, because such jurisdiction, if exercised,
must divert the public property from its destined public use, and
that by international comity, which provides for the equality of
states, if such immunity, grounded on such reasons, exists in each
state with regard to its own public property, the same immunity
must be granted by each state to similar property of all other
states."
We may include with very little stretch of language in the
term " property of the state " the services of its paid officers,
and the different propositions given in this judgment, together
with the reasons, seem, as I have said, to cover the question of
a collision by the alleged negligence of the commander of a state
vessel and show that this court has no jurisdiction to entertain
a personal action for damages. I use the word " cover " advisedly,
for it may be that if they were applied without limitation to the
personnel of this foreign vessel they would be far too wide.
Before, therefore, I can hold this to be the law, there is a
question to be considered which indeed lies on the surface —
why, if the principle does apply to the officers and crew of a
public ship, does it not apply to all cases, for the attorney-
general's contention was limited to actions resulting from the per-
formance of duties; whereas the principles above stated, if they
apply to the officers and crew, are wide enough to cover all
cases, for in all cases the result of bringing this action will be to
withdraw the defendant from the efficient performance of his
official duties and so interfere with the fighting efficiency of his
ship. Secondly, there is the very ingenious point raised by the
plaintiff's counsel, based on the whole, and especially on the con-
cluding, words of the last quotation given from the judgment in
the Parlement Beige. " By international comity, if such im-
munity, grounded on such reasons, exist in each state with regard
to its own public property, the same immunity must be granted
by each state to similar property of all other states." Thus,
concludes the learned counsel, seeing that the immunity claimed
for the commander of the Alexander does not exist in England
with regard to commanders of our own public ships, it can not be
recognized as applicable to the commanders of foreign public
ships. It is admitted that the commander of a British ship may
be sued in an action such as the present, the principle enunciated
by Lushington in the Athol case and acted on in subsequent cases
being that in case of tort or damage committed by vessels of the
Crown the vessels can not be touched, but the legal responsibility
attaches to the actual wrongdoer only.
The proposition advanced, though, as I say. very ingenious,
involves a non-scqititur ; for admitting that the same immunity
must be granted as is granted to similar property owned by any
state, non constat it may not grant a larger immunity to such
40 AUXILIARY COLLIER IN FOREIGN HARBOR.
property when belonging to a foreign state. I think, with very-
great respect, the principle deduced by L. J. Brett from the de-
cision of the Prinz Frederik needs some amplification and ex-
planation. Whatever the rule applicable to such a case as the
present may be, there can be no question that it depends upon
the comity which nations observe in their relations with one
another. But comity depends upon mutual concessions between
such states, and though it may be perfectly true that some of the
rules which depend upon comity deal with subjects which are
dealt with by the municipal laws of states under analogous cir-
cumstances and dealt with moreover by such laws in an identical
or similar fashion, it by no means follows that the methods and
principles adopted by the municipal law form the criterion of
the methods and principles which ought to be adopted when a
case, which depends on a comity, comes for decision. Many cases
dealt with by comity much resemble cases dealt with by munici-
pal law, but beyond this it is not safe to go. There is an im-
munity which hedges the sovereignty — by English municipal law
this takes the form of maxims. " The king can do no wrong."
Statutes do not bind the Crown without express reference, but
there is no such maxim as " Kings can do no wrong." Foreign
sovereigns are exempt from the jurisdiction of our courts, be-
cause the exercise of such jurisdiction is inconsistent with the
independence of their sovereignty, the fundamental principle of
comity being the equality of independent states. Or, to take the
converse case, there is no such rule at all in the French codes.
Is it to be doubted that the King of England is exempt in France
from the jurisdiction of the French courts? This illustration is
sufficient to explain what I have just said. Other illustrations
could, I believe, be found, but it is sufficient to say that so far as
the rules of comity have become concrete they are based entirely
on the mutual recognition of an equal independence, each refrain-
ing from acting so as to interfere with that sovereign's inde-
pendence, and so far as they have not yet become concrete the
mutual recognition, when a case arises for decision, is of the
spirit of the law, rather than of its actual provisions — jus for
jus, not lex for lex. In this I see no possibility of reference in
determining what action is to be taken in any given circumstances
by any state when its own sovereign or its public service is
concerned.
I therefore think that the plaintiff's contention can not be
maintained, and that the principles enunciated in the Parlement
Beige, as applicable to foreign public ships certainly cover the
case of the officers and crew on board, because they are under
the control and employ of a foreign sovereign in national objects
and because the jurisdiction of this court, if exercised, must
divert their public service from its distinct public use. I may
CASE OF THE ALEXANDEK. 41
refer in this connection to the New Chili Gold Mining Company
v. Blanco (4 Times Law Reports, 346), when the court refused
to allow a writ to issue out of the jurisdiction in an action to
be brought against the ambassador accredited to the French
Government. The judge differed as to the ground of refusal,
but it being a matter of discretion the then chief justice said
that the court ought not to call upon a foreign ambassador in
a foreign country to leave his post and come over to this country.
It would interfere with the duties he had to discharge. This I
believe to be a sound doctrine, but it is clear that so far the
proposition is too widely stated for this case, for unless it be
limited in some way, as the learned attorney-general suggests,
in law it arrived at something which, as stated, is not far re-
moved from complete exterritoriality of foreign naval officers,
putting it on a par in all respects with the exterritoriality of
their vessel. There is complete exterritoriality of ambassadors,
but that is a case in which the rule of comity (expressed in
statutory form in England) has taken concrete form. But it is
clear that the case of naval officers has not yet taken such form,
for there is no authority that I know of laying down what their
immunity is. It is, I think, equally clear that no state has ever
claimed such a complete immunity except in case of acts com-
mitted on board ship, but on the contrary that when their ships
are in foreign waters all states recognize the necessity for their
officers, while on shore, conforming to the municipal laws, and
that they make no claim for their surrender in case of breach
of such laws, even though the result should be to withdraw
them from their military service. This same principle applies,
of course, to civil actions. This certainly supports the sugges-
tion that the immunity is limited to acts done while in perform-
ance of their duty.
In order to make the analysis as complete as I am able, let us
assume that while steering a man-of-war's gig during a regatta,
at which the officers and sailors on board were only taking part
as spectators, the officer in charge so negligently navigated as to
run down a sampan, causing its owner damage, I do not believe
in such a case any Government would act as in this case the
United States Government has felt it its duty to act and ask
for the action to be dismissed, and yet the same dicta of the
court in the Parlement Beige might have been pressed into this
service. The common law furnishes instances of analogous cases,
where masters have been held not liable for the negligence of
their servants, although the negligent act was committed while
the servant was driving his master's carriage, because the servant
had gone off the route of duty for a diversion of his own. This
analogy seems to warrant this limitation to the naval officer's
immunity, which was, in fact, suggested by the learned attorney-
4:2 AUXILIARY COLLIER IN FOREIGN HARBOR.
general, and that it exists only so long as be forms a part of the
machine known as a vessel of war and commits this act of negli-
gence with and by means of such vessel and when it is in whole
or in part under his control. But whether such immunity can be
claimed by the officer himself I very much doubt. For these
reasons the motion of the attorney-general must be sustained and
the action dismissed with costs.
This decision establishes the immunity before foreign
courts of officers engaged in the naval service when acting
in the line of duty.
The decision recognizes as a public officer the master
of a collier engaged in the public service under the ap-
pointment of the Secretary of the Navy,
Whteher such a master would be a public officer in the
sense of the United States statutes is not a matter for a
foreign court to decide. His action so far as the for-
eign state is concerned is the action of a public official of
the United States. For this action the United States is
responsible.
No suit can therefore be had against the master of the
vessel.
This late decision is in accord with the principles that
have been developing for many years and in accord with
earlier decisions so far as applicable.
Status of United States auxiliary vessels. — By the
Regulations for the Naval Auxiliary Service, approved
to go into effect April 1, 1907, Chapter I —
1. The naval auxiliary service as hereby organized will in-
clude such transports, supply vessels, colliers, and other vessels
as may be assigned to it by the Department.
2. These vessels shall be governed by the laws of the United
States, by the Navy Regulations as far as they may be applicable,
and by these regulations.
Thus the naval auxiliary service is directly recognized
as an arm of the Nav}^ Department, and if thus recog-
nized by the United States, foreign states cannot question
the fact that such vessels are public vessels.
The Government has also prescribed the course of ac-
tion for commanders of vessels of the United States in
case of collision.
REGULATIONS IN REGARD TO COLLISIONS. 43
Regulations in regard to collisions. — There should be
immediate action in accord with the Regulations for the
Navy, 1905, article 422 :
(1) In the event of a collision between a ship of the Navy and
a merchant vessel, so serious, or under such circumstances as not
to admit of immediate repair with the resources at hand, and
therefore likely to involve damages, the captain shall order a
board of three officers to ascertain all the attendant circum-
stances, injuries received by the merchant vessel, probable
amount of damages, and which of the ships is responsible for the
accident; and the master of the merchant vessel concerned shall
be notified of the time and place of the meeting of the board and
informed that the officers and men of his vessel will be given a
hearing by the board, if such hearing is desired. The report
shall be prepared in triplicate ; one copy shall be forwarded with-
out delay to the commander in chief for the Secretary of the
Navy, one retained by the captain of the ship, and the remaining
copy given to the master of the merchant vessel, provided that
the officers and crew thereof who were witnesses to the collision
shall have testified before the board. When repairs have been
effected on the spot, a certificate to that effect shall be taken
from the master of the merchant vessel and forwarded, through
that commander in chief, to the Secretary of the Navy.
(2) If in the presence of a senior officer, the facts shall be im-
mediately reported to him, and he shall order the board.
(3) If the collision occurs in the waters of the United States
and results in the loss of life or damage to person or property,
the captain shall inform the collector of the district in which it
occurs, in accordance with the act of June 20, 1874 (United States
Laws relating to the Navy and Marine Corps, 1898, page 136). a
°A law of June 20, 1874, requires that' after July 1, 1874, "whenever
any vessel of the United States has sustained or caused any
accident involving the loss of life, the material loss of property, or
any serious injury to any person, or has received any material damage
affecting her seaworthiness or her efficiency, the managing owner, agent,
or master of such vessel shall within five days after the happening of
such accident or damage, or as soon thereafter as possible, send, by letter
to the collector of customs of the district wherein such vessel belongs
or of that within which such accident or damage occurred, a report
thereof, signed by such owner, agent, or master, stating the name and
official number (if any) of the vessel, the port to which she belongs, the
place where she was, the nature and probable occasion of the casualty,
the number and names of those lost, and the probable amount of the
loss or damage to the vessel or cargo ; and shall furnish, upon the request
of either of such collectors of customs, such other information concern-
ing the vessel, her cargo, and the casualty as may be called for ; and
if he neglect or refuse to comply with the foregoing requirement after
a reasonable time, he shall incur a penalty of one hundred dollars."
(18 Statutes at Large, chap. 344, §10.)
>
44 AUXILIARY COLLIER IN FOREIGN HARBOR.
(4) He shall, if the collision occurs in a foreign port, take such
measures as may be required by the port regulations, informing
the captain of the port, should it be necessary.
(5) The foregoing provisions of this article shall apply, as far
as practicable, in all cases of collision by a ship of the Navy with
a wharf, float, or other object.
(6) Whenever, in consequence of injuries sustained in a for-
eign port by a United States vessel, as a result of a collision be-
tween it and a foreign merchant vessel, clearly the fault of the
latter, it may become necessary or desirable, on the part of the
commanding officer of the vessel, to libel the latter vessel, such
libel proceedings shall be instituted in the name of the United
States, and not in the name of such commanding officer. In all
such cases it shall be the duty of the commanding officer con-
cerned, or of the senior officer present, according to circumstances,
immediately to inform the Department of his action.
Resume. — The situation under consideration is as fol-
lows :
A United States auxiliary collier commanded by an officer
appointed by the Secretary of the Navy is in a harbor of State
X. The collier collides with and injures a foreign vessel. The
owner of the foreign vessel brings suit against the commander of
the collier for damages under the civil law, claiming that the
status of the collier is uncertain, and that the commander would
in any case be liable as would the commander of a ship of the
State X, the commanders of whose vessels, public and private,
are liable in the civil courts of that state, under similar circum-
stances.
The fact that the commanding officer is appointed by
the Secretary of the Navy rather than under the usual
commission is not a matter of which any foreign state may
properly take cognizance, provided his conduct is regu-
lated by government orders and provided the government
is responsible for his action. In this case, so far as the
foreign state is concerned, the auxiliary collier is a vessel
of the United States Navy and is therefore a public ves-
sel. The precedents, opinions, and regulations show that
public vessels are not subject to the jurisdiction of a for-
eign state in such a situation as is under consideration.
The recent Regulations for the Naval Auxiliary Serv-
ice of the United States make such a vessel as an auxil-
iary collier a part of the naval force to be governed by
the Navy Regulations as far as these may be applicable.
CONCLUSION. 45
These Kegulations for 1905 provide, article 422, for the
course of action in cases of collision.
The aim as set forth in precedents, opinions, and regu-
lations is not to make it possible for the state which they
represent to avoid responsibility for acts of public vessels
while in a foreign harbor, but rather to avoid complica-
tions which might follow if a public vessel is detained
during the period of suit before a court.
In order not to interfere with the action of a public
vessel and at the same time not to deprive the owner of
the foreign vessel which had been in collision of any just
compensation for damages, it has become common and
in general seems to have worked satisfactorily to present
claims through the regular diplomatic channels. Ac-
cordingly, the action of the responsible officer should be
determined by the above considerations.
Conclusion. — The senior officer, acting in accordance
with principle, precedent, and regulations, should ap-
point a board of inquiry and maintain that the suit
should not be brought against the master of the auxil-
iary collier, but that the claims should be referred to the
United States Government through diplomatic channels,
Situation III.
While there is a war between States X and Y, and the
United States neutral, a war vessel of State X captures
a merchant vessel flying the flag of the United States, and
while returning to the home port of State X brings the
merchant vessel into a port of State Z, which is neutral,
and in which port there is a war vessel of the United
States. The commander of the war vessel of State X
orders the merchant vessel to lower the flag of , the United
States. The captain of the merchant vessel refuses. The
captain of the war vessel of State X orders the flag pulled
down. The captain of the merchant vessel protests
against this act to the commander of the war vessel of the
United States.
Should the commander of the war vessel of the United
States take any action?
SOLUTION.
The commander of the United States war vessel should
protest to the neutral authorities of State Z against the
action of the captain of the war vessel of State X in for-
cibly hauling down the flag of a seized merchant vessel of
the United States while in a neutral port of Z and before
the decision of a prize court. He should also report the
facts to his home government for further action.
NOTES ON SITUATION III.
Early opinion. — Sir William Scott in 1799 announced
as " principles of universal jurisprudence applicable to
all courts " that —
In later times an additional formality has been required, that
of a sentence of condemnation, in a competent court, decreeing
the capture to have been rightly made, jure belli; it not being
thought fit, in civilized society, that property of this sort should
be converted without the sentence of a competent court pronounc-
ing it to have been seized as the property of an enemy, and to
46
OPINIONS AS TO CAPTURE. 47
be now become jure belli the property of the captor. The pur-
poses of justice required that such exercises of war should be
placed under public inspection, and therefore the mere deductio
infra praesidia has not been deemed sufficient. No man buys
under that title; he requires a sentence of condemnation as the
foundation of the title of the seller; and when the transfer is
accepted he is liable to have that document called for, as the
foundation of his own. From the moment that a sentence of
condemnation becomes necessary it imposes an additional obliga-
tion for bringing the property, on which it is to pass, into the
country of the captor; for a legal sentence must be the result
of legal proceedings in a legitimate court, armed with competent
authority upon the subject-matter and upon the parties con-
cerned — a court which has the means of pursuing the proper
inquiry and enforcing its decisions. (The Henrick and Maria,
4 C. Robinson's Admiralty Reports, p. 43.)
In his opinion on the Vrow Elisabeth, rendered in
1803, Sir William Scott says that, according to the estab-
lished principles of law —
It has been decided that a vessel sailing under the colours and
pass of a nation is to be considered as clothed with the national
character of that country. (5C. Robinson's Admiralty Reports,
p. 4.)
Later opinion. — In 1862 Mr. Justice Davis delivered
the opinion of the court in the case of the Nassau to the
effect that —
It is the practice with civilized nations, when a vessel is cap-
tured at sea as a prize of war, to bring her into some convenient
port of the captor for adjudication. The title is not transferred
by the mere fact of capture, but it is the duty of the captor to
send his prize home, in order that a judicial inquiry may be in-
stituted to determine whether the capture was lawful, and if so
to settle all intervening claims of property. Until there is a sen-
tence of condemnation or restitution, the capture is held by the
government in trust for those who, by the decree of the court,
may have the ultimate right to it.
The fact of capture determines the jurisdiction, and not the
filing of a libel. When captured as prize of war the property
is in the custody of the law, and remains there to await the de-
cision of a prize court, and, if condemned, all claims to the prop-
erty are by it adjusted. Any other rule would work great hard-
ship to captors and tend to cripple the operations of a govern-
ment during time of war. (4 Wallace, U. S. Supreme Court
Reports, 635.)
48 RIGHT OF CAPTURED VESSEL TC FLAG.
In a decision of 1902 it is stated that —
Until condemnation captors acquire no absolute right of prop-
erty in a prize, though then the right attaches as of the time of
the capture, and it is for the government to determine when the
public interests require a different destination. (U. S. v. Dewey,
3SS U. S. Supreme Court Reports, 254.)
Case of the Malacca. — Professor Lawrence sets forth
the case of the Malacca, which involved the change of flag
before adjudication by a prize court, as follows:
We are now in a position to consider the case of the Malacca
and deal with the legal points which have arisen in connection
with it. On July 4 the Russian volunteer fleet steamer Peter-
burg passed the Bosphorus and the Dardanelles, after having been
detained by the Turkish authorities for some hours, in the course
of which explanations were exchanged with the Russian ambas-
sador at Constantinople. On July 6 she was followed by the
Smolensk. Both flew the commercial flag. Each declared she
was a commercial ship. Neither could have passed the straits
in any other capacity. They maintained the same character
when going through the Suez Canal. The Pctcrburg certainly,
and possibly the Smolensk also, engaged pilots for the Red Sea
as a vessel of commerce. But soon after leaving Suez she ran
up the Russian naval ensign. Guns were brought out of her hold
and mounted. Her armament was soon complete. She assumed
the character of a war ship and proceeded to cruise against neu-
tral commerce. On July 11, off Jeddah, she stopped and searched
two British vessels, the Menelaus and the Crewe Hall, but after
being detained for some time they were allowed to proceed. On
July 13 she captured the Peninsula and Oriental Company's
steamer Malacca to the north of the island of Jebel-Zukkur and
brought her to Suez on July 19. The Malacca was passed through
the canal in the custody of a Russian prize crew and flying the
Russian naval flag, though, in the absence of any sentence of a
prize court condemning her, she was still in law a British vessel.
She left Port Said on July 21, her destination being unknown,
but it was understood that she would be taken to Libau for trial
and adjudication on a charge of carrying contraband of war.
(War and Neutrality in the Far East, 2d ed., p. 205.)
Sir Charles Harding, the British ambassador at St.
Petersburg, made a strong protest. Later " a compro-
mise " was made. Of this Professor Lawrence says :
It is satisfactory to know that the British remonstrance was not
without effect. What Mr. Balfour described as " a compromise "
was reached. It was agreed that the Malacca should be taken
CASE OF MALACCA. 49
to Algiers and there released after " a purely formal examina-
tion," and an assurance from the British consul that the military
stores were the property of the British Government, and that the
rest of the cargo was innocent. These formalities were gone
through on July 27. At sunset the Russian flag, which ought
never to have been hoisted, was hauled down, and at sunrise the
next morning the British flag took its proper place at the mast-
head. With regard to the Peterburg and the Smolensk, they "were
no longer to act as cruisers," and any vessels captured by them
were to be immediately released. This latter part of the agree-
ment was carried out to the full by the liberation on July 27 of
two British vessels, the Ardova and the Formosa, which had been
seized in the Red Sea. . No admission was made of the general
principle that vessels of the volunteer fleet which had passed
through the straits as merchantmen were legally incapable of
acting as ships of war. Instead, it was asserted that the two
steamers whose conduct was questioned had " received a special
commission, the term of which had already expired ; " and thus
the cessation of their attacks on neutral commerce was accounted
for without acceptance of the British contention.
We may admit that a compromise was necessary, while at the
same time we regret some of the conditions which were agreed
upon. The examination of the Malacca at Algiers was contrary
to the fundamental principle for which we contended. The Rus-
sian Government published an official statement on August 2, rep-
resenting it as " a fresh visit." It would be hard to argue that it
was nothing of the kind, though, as it took place in a neutral port,
it was absolutely irregular from beginning to end. The assurance
of the British consul as to the innocence of the cargo implied that
the arresting vessel had a right to inquire into the matter;
whereas the head and front of our argument had been that the
arrest, visit, and detention were wrongful acts, because the ship
which performed them had no legal capacity to do so." (War
and Neutrality in the Far East, 2d ed., p. 212.)
The attitude of the Russian Government on the seizure
and release of the Malacca is indicated by a statement in
the Official Messenger of August 2, 1904.
From the beginning of the Russo-Japanese war the Imperial
Government took measures to prevent the transport of contraband
of war to Japan by vessels of neutral countries. In the regula-
tions sanctioned by the Czar on February 14, 1904, which Russia
proposed to follow during the war, a list was given of articles
regarded by us as contraband of war. It was also declared that
the military and maritime authorities would reserve to them-
selves the right of rigidly executing the decision contained in the
25114—08 4
50 RIGHT OF CAPTURED VESSEL TO FLAG.
regulations for naval prizes sanctioned by the Czar on March 27,
1895, and in the instructions confirmed by the Council of Ad-
miralty on September 20, 1900, regarding the procedure for stop-
ping, visiting, and seizing, as well as for carrying off and deliver-
ing over, vessels and cargoes seized.
The vessels St. Petersburg and Smolensk, of the volunteer fleet,
having received a special command, the term of which has already
expired, on proceeding to their destination, acted in accordance
with the above decisions, and while passing through the Red Sea
stopped and visited all suspected vessels they encountered in those
waters. It was under these conditions that the commander of the
St. Petersburg stopped, among others, the British ship Malacca,
the captain of which refused to show the ship's papers relating
to the cargo, a refusal which led to the seizure of the vessel and
the decision to send it to Port Alexander III, Libau, with a view
to throwing light on the matter.
Nevertheless, in view of an official statement of the British
Government that the Malacca was carrying British state cargo,
the Imperial Government, acting in agreement with the British
Government, decided that a fresh visit should be paid to the
seized vessel at the nearest port on its route in the presence of a
British consul. The visit took place at Algiers. The British
Consul-General officially certified that the military stores on board
the Malacca continued to be the property of the British Govern-
ment, and that the rest of the cargo was not contraband of war.
Taking this attestation into consideration, the Imperial Govern-
ment decided to liberate the cargo and vessel.
This decision must not, however, be interpreted as a renuncia-
tion by the Imperial Government of its intention to dispatch
alike cruisers and war ships in general to prevent the carrying of
contraband of war for our enemy.
Seizure of enemy differs from seizure of neutral ves-
sels. — The seizure of an enemy private vessel is an act
very different in character and intent from that of seizure
of a neutral private vessel. The enemy vessel is brought
before the court to determine its disposition. The act of
seizure, if made according to the recognized rules of in-
ternational law, is not in question. The burden of proof
rests upon the seized vessel.
The neutral, however, should be freed from all inter-
ference in prosecution of proper neutral activities. The
presumptions are in favor of the neutral. The burden of
proof of guilt rests on the belligerent seizing the neutral.
The seizure of a vessel is in effect an act of war. In
case the vessel is the property of a belligerent it is re-
SEIZURE OF ENEMY VESSEL. 51
garded as legitimate. In case the vessel is the property
of a neutral such vessel must be involved in the war in
order to justify the seizure, otherwise it is an act of war
against a neutral, and being without sanction renders the
belligerent making the seizure liable to damages. Seizure
of a neutral is justified to prevent an act which would in-
volve participation in the hostilities, as to prevent the
delivery of contraband or to penalize the neutral for com-
plicity in the hostilities, as in seizure of a neutral vessel
returning from a violation of blockade.
There is a reference to the seizing of enemy property
and the general immunity of neutral territory in the case
of the Vrow Anna Catharina:
The right of seizing the property of the enemy is a right which
extends, generally speaking, universally wherever that property
is found. The protection of neutral territory is an exception to
the general rule only ; it is not therefore to be considered as dis-
respectful to any government that the fact on which such claims
are founded should be accurately examined. (5 C. Robinson's
Admiralty Reports, 15.)
The exemption of neutral territory from all acts in-
volving hostility is now most firmly maintained.
The object of searching ostensible neutrals is to get evidence as
to the fact of neutrality and if the cargo be not enemy's property ;
or, if neutral, whether they are carrying contraband; or whether
the vessels are in the service of the enemy in the way of carrying
military persons or dispatches or sailing in prosecution of an
intent to break blockade. {The Jane, 37 U. S. Court of Claims,
24, Dec. 2, 1901.)
These opinions and precedents show that neutral vessels
are seized by one belligerent in order to determine
whether their action has aided or is evidently to aid the
opposing belligerent. The action of the seizing belliger-
ent is justified to the extent that it may be necessary to
ascertain these facts. All neutrals concerned, the seized
neutral and others affected by the seizure, are entitled to
exemption from the effects of war in which they have no
participation.
Regulations as to seizure. — The regulations of various
states and action under these regulations show the general
tendency.
52 RIGHT OF CAPTURED VESSEL TO FLAG.
The Russian Regulations on Maritime Prize give the
following as the method of conducting detained vessels
into port :
22. Detained vessels and cargoes are conducted by the detaining
vessel into Russian ports, and if there are none such in the vicin-
ity, then into the ports of an allied power or to the active Russian
fleet (the fleet engaged in operations). In case of storm or other
extreme necessity the detaining vessel may, together with the
detained vessel, seek shelter in the port of a neutral power.
Regarding the period and conditions of remaining in port, the
commander of the detaining vessel is obliged to submit to the
rules established on this subject by the local government.
In the " Instructions concerning stopping, examining,
etc.":
42. An imperial vessel, while conducting away detained vessels,
may enter the ports of a neutral power which has not forbidden
in its declaration of neutrality (or other official document) the
visitation of ports by war vessels of the belligerent parties with
prizes.
Similarly an imperial cruiser may seek refuge in a port of a
neutral power, together with captured vessels, in the case of a
storm or other extreme necessity (for instance, a breakdown in
the engines, insufficiency of supplies, or in case of pursuit by an
enemy of superior strength), in which case the commander of the
imperial vessel must submit to the rules established by the local
government with regard to the period and other conditions of
the sojourn in the neutral port. (U. S. Foreign Relations, 1904,
pp. 738, 753.)
The Russian Regulations on Maritime Prizes enunciate
the following doctrine in regard to the nationality of a
vessel :
The nationality of a vessel is determined according to the laws
of the nation under whose flag it sails or to whose navy it claims
to belong. Merchant vessels acquired from a hostile power or
its subjects by persons of neutral nationality are acknowledged
to be hostile vessels unless it is proven that the acquisition must
be considered, according to the laws of the nation to whom the
purchaser belong, as having actually taken place before the pur-
chasers received news of the declaration of war, or that the ves-
sels acquired in the manner mentioned, although after the receipt
of such news, were acquired quite conscientiously, and not for the
purpose of covering hostile property.
REGULATIONS AS TO MARITIME PRIZES. 53
In regard to the treatment of war vessels the Russian
Regulations on Maritime Prizes provide:
27. The confiscation of detained war vessels and cargoes takes
place by order of the proper naval authority. The confiscation
of other vessels and cargoes subject to detention does not take
place otherwise than by virtue of a decision of a prize court.
The instructions issued by Spain, April 24, 1898, pre-
scribe that —
3. Seas subject to the sovereign jurisdiction of neutral powers
are absolutely inviolable; right of visit may not, therefore, be
resorted to within them, even if it be alleged that it was at-
tempted to exercise such right in the open sea, and that, on chase
being given, and without losing sight of the vessel pursued, the
latter penetrated into neutral waters.
Neither may the violation of the rights attaching to such
waters be justified under the pretext that the coast washed
thereby was undefended and uninhabited.
9. The visit is not an act of jurisdiction of the part of the
belligerent ; it is a natural means of legitimate defense allowed
by international law, lest fraud and bad faith should assist
the enemy. The right should therefore be exercised with the
greatest moderation by the belligerent, special care being taken
to avoid causing the neutral any extortion, damage, or trouble
that is not absolutely justifiable.
In consequence of this the detention of the ship visited should
always be as short as possible, and the proceedings restricted
as far as they can be, their exclusive object being, as explained,
for the belligerent to ascertain the neutrality of the ship, and in
case of neutrality (if bound for a port of the enemy) the in-
offensive and neutral description of its cargo.
It is not necessary, therefore, to demand during the visit any
other documents than those proving these two conditions, for
what the belligerent requires is to prevent any damage, favoring
or assisting the enemy ; to prevent assistance and help being fur-
nished to them now that may contribute directly to the prolonga-
tion of the war, and not to be assured that all ships belonging
to neutral powers are provided with all the documents required
by the laws of their country.
The British Admiralty Manual of Prize Law states
that —
299. The Commander, however, must bear in mind that he
eannot take the Vessel into a Neutral Port against the will of the
Local authorities; and that under no circumstances can proceed-
ings for Adjudication be instituted in a Neutral Country.
54 RIGHT OF CAPTURED VESSEL TO FLAG.
300. Both the Cruiser and, if admitted, her Prize are by the
Comity of Nations exempt from the local jurisdiction. (Page 85.)
Regulations in regard to use of flag. — The French "In-
structions contemporaires " of 1870, article 3, state:
Les prises naviguent avec le pavilion et la flamme, insignes de»
batiments de l'Etat.
Under certain circumstances the commander of a war
vessel may, according to the British Manual' of Naval
Prize Law, require the vessel seized as probably good
prize to lower her flag.
As soon as the Commander has come to the determination to
detain the Vessel, he should give notice to the Master, and may
state to him the ground on which the Detention is made. The
Commander should then without any delay secure possession of
the Vessel, by sending on board one of his Officers and some of
his Crew. If by reason of rough weather or other circumstances
this is impracticable, the Commander should require the Vessel
to lower her flag, and to steer according to his orders. (Page GO.)
Article LXVII of the Japanese Regulations of 1904
follows in the main the British Manual.
Art. LXVII. If the captain of the man-of-war decides to cap-
ture a vessel he shall inform her master of the reason, and shall
take possession of the vessel by sending one officer and the re-
quired number of petty officers and men. If on account of bad
weather or any other reason it is impossible to dispatch these
officers and men, the captain of the man-of-war shall order the
vessel to haul down her colors and to steer according to his
direction. If the vessel does not obey the orders of the captain
of the man-of-war, he may take any measures required for the
occasion.
Certain clauses of the Danish proclamation of neu-
trality of April 27, 1902, show the modern attitude on
the treatment of prize:
The belligerents must not commit hostile acts in Danish har-
bors or waters or make use of the same as base for operations
at sea against each other or for the purpose of facilitating such
operations. Nor must they use such harbors or waters for aug-
menting or renewing military equipment or for recruiting pur-
poses.
Prizes must not be brought into a Danish harbor or roadstead
except in evident case of stress, nor must prizes be condemned
or sold therein.
USE OF FLAG. 55
In the Notice from the Danish Ministry of Foreign
Affairs is the following:
Article 1. When a Danish merchant vessel at sea is hailed by
an armed ship belonging to either belligereut, she has, at the
request of the officer in command, without opposition, to produce
the ship's papers, i. e., the certificate of nationality and registry
(or in default of such a one, a provisional certificate of nationality
delivered by a Danish consul), the crew list, the clearance papers,
and the manifest. It is forbidden to conceal, to destroy, or to
throw overboard papers concerning the ship or her cargo as
well before as during the search. No Danish ship is allowed to
have double papers or to fly another flag than the Danish flag.
The United States Navy Regulations of 1876, chapter
20, state that —
14. A neutral vessel seized is to wear the flag of her own coun-
try until she is adjudged to be a lawful prize by a competent
court. The flag of the Uuited States, however, may be exhibited
at the fore, to indicate that she is, for the time, in the possession
of officers of the United States.
This does not appear, however, in subsequent issues of
the Navy Regulations.
Opinions as to use of flag. — Dupuis says :
L'envoi du vaisseau capture a, un port belligerant, avec tous les
elements propres a faire juger si la capture est legitime, est, en
principe, obligatoire. L' intervention des cours de prises constitue
une garantie necessaire contre les abus du droit de capture; or,
cette garantie ne saurait etre pleinement efficace qu'autant que les
documents et les objets saisis se trouvent k la disposition des
cours appelees a statu er. (Le droit de la guerre maritime, No.
260, p. 331.)
Kleen, writing of the procedure in case of seizure, says :
Le navire, gardant son pavilion jusqu'au jugement, sera con-
duit au port du tribunal par un commandant et un equipage
delegues du capteur et suffisants pour diriger et manoeuvrer le
navire sous sa responsabilite. Pendant le trajet, rien ne peut
etre touche sans permission du capitaine et sans urgence pour la
conservation des objets. (2 La Neutrality, § 213, p. 522.)
The procedure in visit, search, and seizure is so care-
fully prescribed that in the exercise of such a delicate
right there should be no action beyond that uniformly
permitted and sanctioned by international law.
56 RIGHT OF CAPTURED VESSEL TO FLAG.
Oppenheim says in regard to the treatment of prize
that —
As soon as a vessel is seized she must be conducted to a port
where a prize court is sitting. As a rule the officers and crew
sent on board the prize by the captor will navigate the prize to
the port. This officer can ask the master and crew of the vessel
to assist him, but if they refuse they can not be compelled thereto.
The captor need not accompany the prize to port. In the excep-
tional case, however, where an officer and crew can not be sent
on board and the captured vessel is ordered to lower her flag and
steer according to orders, the captor must conduct the prize to
port. (2 International Law, p. 198, § 193.)
In 1886 the flag of a fishing vessel was hauled down
in a Canadian port on the ground that the fishing vessel
had violated certain local regulations.
Mr. Bayard, in a letter to Mr. Phelps, says :
It seems hardly necessary to say that it is not until after con-
demnation by a prize court that the national flag of a vessel
seized as a prize of war is hauled down by her captor. Under
the fourteenth section of the twentieth chapter of the Navy Regu-
lations of the United States the rule in such cases is laid down as
follows :
"A neutral vessel, seized, is to wear the flag of her own country
until she is adjudged to be a lawful prize by a competent court."
But, a fortiori, is this principle to apply in cases of customs
seizures, where fines only are imposed and where no belligerency
whatever exists? In the port of New York, and other of the
countless harbors of the United States, are merchant vessels fly-
ing the British flag which from time to time are liable to penal-
ties for violations of customs laws and regulations. But I have
yet to learn that any official, assuming, directly or indirectly, to
represent the Government of the United States, would under such
circumstances order down or forcibly haul down the British flag
from a vessel charged with such irregularity; and I now assert
that if such act were committed, this Government, after being
informed of it, would not wait for a complaint from Great
Britain, but would at once promptly reprimand the parties con-
cerned in such misconduct and would cause proper expression of
regret to be made. rFor. Rel. U. S., 1886, p. 370.)
The principle that enemy goods and ships are liable
to seizure being at present admitted, there can be little
objection raised to placing the national flag of the cap-
turing vessel over a seized vessel belonging to a bellig-
erent. It does pass, if good prize, to the state of the
captor upon capture. It is brought in for adjudication.
SUMMARY. 57
In regard to a neutral vessel, the principle is quite
otherwise. The neutral, is only seized and held pending
the decision of the prize court.
The Austrian regulations seem, therefore, to be in ac-
cord with the best opinion. These are to the effect that
if an enemy vessel is captured the imperial standard
should be hoisted at once at the peak of the captured
vessel.
If a neutral vessel is seized it should carry its own
flag till it is declared good prize, although the Austrian
colors may be hoisted at the fore to indicate that the
vessel is under the direction of a war ship of Austria.
The position is similar to that in the United States
Navy Regulations of 1876.
Summary. — In the situation under consideration there
are several parties concerned: (1) The authorities of the
neutral state into which the vessel has been brought; (2)
the war vessel of the United States; (3) the seized mer-
chant vessel of the United States, a neutral ; (4) the war
vessel making the seizure.
(1) Relations of the neutral state. — The authorities of
neutral states have full right to forbid the entrance of
vessels with prize. They have the full right to regu-
late the conditions of entrance and sojourn of any vessels
admitted with prize during war. As neutrals they are
under obligation to see that no acts of war take place
within their jurisdiction. The capture within neutral
jurisdiction of a vessel of which the pursuit was begun
outside of neutral territory is not allowed. The neutral
is entitled to claim that its territory should not be the
scene of any proximate act of war. The forcible hauling
down of the flag of the merchant vessel of the United
States is an act approximating war. The transfer of
flag is an indication of the transfer of sovereignty. A
forcible transfer of this kind is of the nature of capture
which is forbidden in neutral territory. As ships of war
with prize are generally admitted to neutral ports only
on sufferance, it is proper for the neutral authorities to
demand that the status of the prize be not changed by the
use or threat of force or in any manner other than of its
58 RIGHT OF CAPTURED VESSEL TO FLAG.
own volition during the sojourn within port. As the
hauling down of a neutral flag and the raising of a bellig-
erent flag in its place under orders of the belligerent
within a neutral port would be in the nature of evidence
of transfer of authority, such a transfer would properly
be an act to which the neutral would object.
The neutral, therefore, has a right to protest if a
belligerent entering its port with prize performs any
such act in derogation of his sovereignty. The forcible
hauling down of an}' neutral flag would be an act of such
character. Therefore the neutral would have cause for
protest.
(2) Position of the war vessel of the United States. —
The war vessel of the United States is under the general
restrictions as regards conduct in a foreign state. It
may not take any action in derogation of the sovereignty
of the neutral port of State Z. To use force to restore
the flag of the merchantman of the United States would
be an offense against State Z and would imply that State
Z was unable to secure the enforcement of proper regu-
lations in its ports. Both the war vessel of State X and
its prize while in the neutral port of Z are within its
jurisdiction, and any act of force would be an offense
against the neutral state. Accordingly the commander
of the United States war vessel would have no right to
interfere other than by stating the facts and making pro-
test against the action of the captain of the war vessel
of State X. This protest should be made to the authori-
ties of neutral State Z who have jurisdiction, and protest
may be made also directly to the captain of the war ves-
sel of State X by the captain of the United States war
\essel, if he deems it expedient.
(3) Right of captured neutral vessel to flag. — The cap-
tured neutral merchant vessel of the United States has
a right to carry its flag until condemned, and it is proper
that it should do so in order that in case its captor should
be attacked by the other belligerent the status of the prize
may be known, or in case it is sent in under a prize crew
that its status may similarly be evident. In flying the
enemy's flag in place of its proper flag its status would be
CONCLUSION. 59
that of an enemy vessel so far as the opposing belligerent
was concerned. Until condemnation in a regular court
its status is not changed and it should be made liable to
the consequences of seizure only. Therefore it has the
right to its own flag till condemned.
(4) Rights of war vessel of State X. — The war vessel
of belligerent State X which made the capture has no
rights except that of peaceable sojourn in a neutral port
of State Z, which has admitted the war vessel with its
prize. The forcible hauling down of the neutral flag is
an act beyond those permitted in peaceful sojourn and is
beyond the rights of the captain.
The neutral merchant vessel has a right to its flag as
evidence of its nationality and for its protection till con-
demned. The merchant vessel is seized only in order
that it may be brought before a court. It is regarded as
innocent until condemned. Such use of force by the of-
ficers of State X against its flag would be an anticipation
of the judgment of the prize tribunal. The captain of
the merchant vessel is right in declining to haul down
his flag.
As the neutral state is responsible for acts which take
place within its jurisdiction, the proper authority to
which the commander of the United States war vessel
should look is that of the neutral state. As the neutral
merchantman of the United States is entitled to her flag
until condemned and as the hauling down of the United
States flag by force would be an evidence of transfer of
jurisdiction which should not take place in a neutral
port, the commander of the United States war vessel
would be justified in taking action.
Conclusion. — The commander of the United States
war vessel should protest to the neutral authorities of
State Z against the action of the captain of the war ves-
sel of State X in forcibly hauling down the flag of a
seized merchant vessel of the United States while in a
neutral port of Z and before the decision of a prize court.
He should also report the facts to his home government
for further action.
Situation IV.
In the time of war between the United States and
State Z, a merchant vessel of State Z is overtaken by a
war vessel of the United States. The merchant vessel
resists capture and tries to escape, but is captured and
found to have on board certain goods which the captors
wish for immediate use, but which are said by the cap-
tain and seem in fact to belong to neutral parties.
Should these goods be treated as hostile ? What action
could be taken?
SOLUTION.
The goods should not be treated as hostile.
The goods should not be taken from the vessel except
for better preservation thereof or unless such articles are
absolutely needed for the use of vessels or armed forces
of the United States. The appropriation of innocent
neutral goods must be justified by military necessity, not
by mere wish or desire.
NOTES ON SITUATION IV.
Status of merchant vessels as regards capture. — There
is a wide difference between the capture of an enemy
merchant vessel and the capture of a neutral merchant
vessel. The enemy vessel is captured as a proper act
in the conduct of the war. The presumption in the
case of capture of an enemy vessel is that it is good
prize and the burden of proof of exemption rests upon
the enemy. The presumption in the case of the cap-
ture of a neutral vessel is that it is exempt until
proved good prize by the proper authorities. The
liability to capture is the deterrent which is present
to the neutral to cause him to refrain from becoming
involved in the hostilities. The neutral vessel is, if in-
nocent, liable only to inconvenience. Resistance by force
by a neutral vessel would be taken as evidence of guilt.
60
RESISTANCE TO CAPTURE. 61
Resistance by force by an enemy vessel would be but a
natural attempt to avoid certain penalties.
Resistance in general. — It is not easy to determine
what kind of resistance constitutes a sufficient ground
for seizure, and the courts have therefore held that they
can not so differentiate, but that any resistance will
render a vessel liable to seizure. In the case of the Jane
it was decided that an American merchant vessel attempt-
ing flight from an unknown vessel but heaving to on
discovering that it was a French cruiser that was firing
upon her, was guilty of resistance to search. (The Jane,
37 Court of Claims, U. S., 24.) Not even grave appre-
hension of illegal condemnation will justify a neu-
tral merchant vessel in resisting the right of search by
a belligerent. (The Rose, 37 Court of Claims, U. S., 290.)
Regulations as to resistance. — The British regulations
in regard to resistance in general are as follows:
RESISTANCE.
145. The Commander should detain any Vessel which forcibly
resists Visit or Search.
146. A mere attempt at escape is, in itself, no ground for Deten-
tion, though the Commander will not be liable for injury which
he may cause to the Vessel, or her Crew, in forcibly preventing
her escape.
147. The Penalty for Resistance by the Master of a Neutral
Vessel is the confiscation of the Vessel and the Neutral cargo.
Resistance by the Master of an Enemy's private ship does not
forfeit a Neutral cargo, which will, however, be condemned if
found on board an armed Ship of the Enemy.
RESISTANCE BY NEUTRAL CONVOY.
14S. Any resistance made by a Neutral Convoying Ship to the
lawful Visit and Search of a Vessel under her escort will justify
the Detention both of the Convoying Ship and of all Vessels con-
voyed by her.
149. If, upon the Visit and Search of a Vessel under Neutral
Convoy, it shall appear that the Master set sail with instructions
to make an armed resistance to Search, the Vessel should be
Detained.
ENEMY CONVOY.
150. Vessels under Enemy Convoy are, from that circumstance
alone, liable to Detention. (Admiralty Manual Prize Law, 1888,
p. 44.)
62 RESISTANCE TO CAPTURE.
The Japanese Regulations of 1904 state:
Art. XXXVII. Any vessel that comes under one of the following
categories shall be captured, no matter of what national character
it is:
1 Vessels that carry persons, papers, or goods that are contra-
band of war.
2. Vessels that carry no ship's papers, or have willfully muti-
lated or thrown them away, or hidden them, or that produce
false papers.
3. Vessels that have violated a blockade.
4. Vessels that are deemed to have been fitted out for the
enemy's military service.
5. Vessels that engage in scouting or carrying information in
the interest of the enemy, or are deemed clearly guilty of any
other act to assist the enemy.
G. Vessels that oppose visitation or search.
7. Vessel's voyaging under the convoy of an enemy's man-of-
war.
Art. XLVIII. Vessels that have opposed visit or search, and all
the goods belonging to the owners of such vessels, shall be for-
feited.
The instructions issued for the Spanish navy in 1898
provided :
In consequence of the visit the vessel is captured in the follow-
ing cases :
*******
if active resistance is offered to the visit, that is, if force is
employed to escape it.
General Orders, No. 492, of the Navy Department,
June 20, 1898, stated that—
A vessel under any circumstances resisting visit, destroying her
papers, presenting fraudulent papers, or attempting to escape
should be sent in for adjudication.
Neutral goods on armed vessels. — In the case of the
Fanny, neutral Portuguese property was placed on board
a British armed ship which was captured by an American
schooner and afterwards was retaken by a British war
vessel. It was decided by the British court that neutral
property thus shipped was, if captured, liable to con-
demnation, and if recaptured, subject to salvage. (1
Dodson's Admiralty Reports^ 443.) An American deci-
sion of the same period (1815) maintained, though with
strong dissent, that —
CASE OF THE MAKIA. 63
A neutral may lawfully employ an armed belligerent vessel to
transport his goods, and such goods do not lose their neutral
character by the armament, nor by the resistance made by such
vessel, provided the neutral do not aid in such armament or re-
sistance, although he charter the whole vessel, and be on board at
the time of the resistance. (The Nereide, 9 Cranch, U. S. Su-
preme Court Reports, p. 388.)
This decision was affirmed in the case of the Atlanta
in 1818. (3 Wheaton, U. S. Supreme Court Reports,
415.)
The British point of view, that neutral goods upon an
armed vessel of a belligerent would be liable to confisca-
tion, seems to be generally held at present, though such
cases are little likely to arise.
Early British opinion as to merchant vessels. — The gen-
eral subject of resistance to visit and search was consid-
ered quite fully in the case of the Mama. Sir William
Scott mentions certain principles which he regards as
incontrovertible. He maintains —
that the right of visiting and searching merchant ships upon the
high seas, whatever be the ships, whatever be the cargoes, what-
ever be the destinations, is an incontestable right of the lawfully
commissioned cruisers of a belligerent nation, I say, be the
ships, the cargoes, the destinations what they may, because, till
they are visited and searched, it does not appear what the ships,
or the cargoes, or the destinations are; and it is for the purpose
of ascertaining these points that the necessity of this right of
visitation and search exists. The right is so clear in principle
that no man can deny it who admits the legality of maritime cap-
ture; because if you are not at liberty to ascertain by sufficient
inquiry whether there is property that can legally be captured
it is impossible to capture. Even those who contend for the
inadmissible rule that free ships make free goods must admit the
exercise of this right, at least for the purpose of ascertaining
whether the ships are free ships or not. The right is equally
clear in practice, for practice is uniform and universal upon the
subject. The many European treaties which refer to this right
refer to it as preexisting, and merely regulate the exercise of it.
All writers upon the law of nations universally acknowledge it,
without the exception even of Hubner himself, the great champion
of neutral privileges. In short, no man in the least degree con-
versant in subjects of this kind has ever, that I know of, breathed
a doubt upon it. The right must unquestionably be exercised
with as little of personal harshness and of vexation in the mode
64 RESISTANCE TO CAPTURE.
as possible; but, soften it as much as you can, it is still a right
of force, though of a lawful force — something in the nature of
civil process where force is employed, but a lawful force which
can not be lawfully resisted. For it is a wild conceit that wher-
ever force is used it may be lawfully resisted. The only case
where it can be so in matters of this nature is in a state of war
and conflict between two countries, where one party has a perfect
right to attack by force and the other has an equally perfect right
to repel by force. But in the relative situation of two countries
at peace with each other no such conflicting rights can possibly
coexist.
Later in the same case he sets forth the penalty:
The penalty for the violent contravention of this right is the
confiscation of the property so withheld from visitation and
search. For proof of this I need only refer to Vattel, one of the
most correct and certainly not the least indulgent of modern pro-
fessors of public law. In Book III, c. vii, sect. 114, he expresses
himself thus : " On ne peut empecher le transport des effets de
contrebande, si Ton ne visite pas les vaisseaux neutres que Ton
recontre en mer. On est done en droit de les visiter. Quelqes
nations puissantes ont refuse en differents temps de se soum-
mettre a cette visite; aujourdliui nn vaisseau neutre, qui refuse-
roit de souffrir la visite, se feroit condamner par cela seul, comme
4tant bonne prise." Vattel is here to be considered not as a
lawyer merely delivering an opinion, but as a witness asserting
the fact — the fact that such is the existing practice of modern
Europe. And to be sure, the only marvel in the case is that he
should mention it as a law merely modern, when it is remembered
that it is a principle not only of the civil law (on which great
part of the law of nations is founded), but Of the private juris-
prudence of most countries in Europe, that a contumacious re-
fusal to submit to fair inquiry infers all the penalties of con-
victed guilt. Conformably to this principle, we find in the cele-
brated French Ordinance of 1681, now in force, article 12, " That
every vessel shall be good prize in case of resistance and com-
bat; " and Valin in his smaller Commentary, p. 81, says expressly
that although the expression is in the conjunctive, yet that the
resistance alone is sufficient. He refers to the Spanish Ordinance,
1718, evidently copied from it, in which it is expressed in the dis-
junctive, " in case of resistance or combat." And recent in-
stances are at hand and within view in which it appears that
Spain continues to act upon this principle. The first time in
which it occurs to my notice on the inquiries I have been able to
make in the institutes of our own country respecting matters of
this nature, excepting what occurs in the Black Book of the Ad-
miralty, is the order of council, 1664, article 12, which directs,
OPINIONS OF TEXT- WRITERS. 65
" That when any ship met withal by the royal navy or other ship
commissionated shall fight or make resistance, the said ship and
goods shall be adjudged lawful prize," and, " deliberate and con-
tinued resistance to search on the part of a neutral vessel to a
lawful cruiser is followed by the legal consequence of confisca-
tion." (The Maria, 1 C. Robinson's Admiralty Reports, p. 340.)
If the ship resisting or attempting to rescue itself is a
neutral the cargo would be liable to confiscation. If an
enemy ship persists or attempts to escape the act is one
against which the captor is supposed to be on his guard.
In the case of the Gatherina Elizabeth, in 1804, it was
held of the attempt of an enemy master to rescue his ves-
sel that —
It could only be the hostile act of a hostile person who was
prisoner of war, and who, unless under parole, had a perfect
right to attempt to emancipate himself by seizing his own vessel.
If a neutral master attempts a rescue he violates a duty which is
imposed upon him by the law of nations, to submit to come in
for inquiry as to the property of the ship or cargo, and if he
violates the obligation by a recurrence to force the consequence
will undoubtedly reach the property of his owner, and it would, I
think, extend also to the confiscation of the whole cargo entrusted
to his care and thus fraudulently attempted to be withdrawn from
the rights of war. With an enemy master the case is very differ-
ent. No duty is violated by such an act on his part, lupum
auribus teneo, and if he can withdraw himself, he has a right to
do so. (5 C. Robinson's Admiralty oReports, p. 232.)
Opinions of text-writers. — Dupuis writes somewhat at
length of resistance to visit and capture. He says:
Les neutres sont dans l'obligation de souffrir la visite, quelque
prejudiciable qu'elle leur puisse etre; mais ils peuvent etre
grandement tentes de s'y soustraire & cause des desagrements
qu'elle entraine, plus grandement encore lorsque leur conduite,
n'etant pas irreprochable, les expose k la saisie.
Le procede le plus simple pour y echapper consiste & fuir, au
lieu d'obtemperer k la sommation du belligerant. Le belligerant
peut alors employer la force sans encourir aucune responsabilite'
a raison des dommages que son artillerie peut causer au fugitif.
Mais ces dommages sont considered comme une peine suffisante
de l'essai manque. Les doctrines anglaises s'accordent sur ce
point avec les doctrines franchises. " Une simple tentative de
fuite, dit le Manuel des prises britannique, n'est pas en soi une
cause de saisie, bienque le commandant ne soit point responsable
25114—08 5
06 RESISTANCE TO CAPTURE.
des doimnages qu'il peut causer an navire ou a son Equipage, en
erupechant par la force cette fuite."
Seniblable essai toutefois fournira tou jours au belligerant des
justes motifs de soupgou ; la visite k laquelle il se livra n'en sera
que plus ruinutieuse et telle circonstance qui, a elle seule ne
l'aurait pas conduit k saisir, l'y decidera sans doute en devenant
plus suspecte apres une telle conduite.
Tout autres sont les consequences d'une resistance par la force.
Cette resistance constitue un acte hostile; elle entraine ipso facto
confiscation du navire et de route la cargaison.
La violation de neutrality comrnise par le capitaine compromet
le chargement en ineine temps que le vaisseau ; les proprietaires
de niarchandises neutres inoft'ensives sont ainsi punis d'avoir trop
mal place leur confiance. S'agit-il de navires neutres naviguant
sous convoi, la resistance du navire convoyeur au droite de visite,
pretendu par un vaisseau britannique dument commissione suffit,
nous l'avons vu, a entrainer le capture de tout le convoi. Les
Anglais regardent les convois avec une telle defiance et leur t6-
moigent une telle hostilite que la seule decouverte, au cours de la
visite, d'instructions donnees a un des vaisseaux convoy6s de
s'opposer par la force a toute perquisition, suffirait k determiner
la saisie de ce vaisseau, bien qu'aucune resistance n'ait 6te' faite.
A plus forte raison, le navire neutre qui naviguerait sous convoi
ennemi serait-il, pour ce seul fait, puni de confiscation, car la meil-
leur raison de sa presence en compagnie si compromettante ne
pourrait etre que la ferme intention de resister au droit de visite.
La cargaison neutre, au contraire, n'encourt pas toujours confis-
cation a bord d'uu navire ennemi, par cela seul que le navire a
fait resistance. Les Anglais distinguent selon que le vaisseau
6ta it arme ou non : 6tait-il arme, le proprietaire du chargement
neutre ne l'a evidemment choisi que dans le but de soustraire ses
biens k la visite, et cela justifie la confiscation ; n'etait-il pas arm§,
le neutre a pu lui confier ses biens sans pre>oir aucun acte de
force; on ne saurait lui reprocher d'avoir voulu s'opposer au
droit de visite. Si le navire ennemi a n€anmoins resists comme
c'^tait son droit de le faire dans son propre interet et dans 1' in-
terest de sa cargaison ennemie, cette attitude licite ne doit pas
prejudicier aux biens neutres k son bord. (Le droit de la guerre
maritime, Nos. 254, 255; p. 223.)
Duboc gives his opinion as follows:
Si le navire suspect refuse de s'arreter et manifeste par sa
manoeuvre l'intention d'echapper k la visite, le croiseur est au-
torise & tirer a boulet, sur son avant, mais sans l'atteindre. Si,
enfin, cette seconde sommation reste sans effet, le croiseur a le
droit de donner la chasse et d'employer la force, sans qu'on puisse
le rendre responsable des avaries qui peuvent arriver au navire
poursuivi. Si le neutre refuse par la force et engage un combat
OPINIONS OF TEXT- WRITERS. 67
?\. la suite duquel il est rednit, le navire est considere comme de
bonne prise. Nouse partageons a cet egard l'avis de Hantefeuille
qui assiniile la resistance a l'exercise de la visite an fait de por-
ter de la contrebande de guerre et de violer la neutrality. On ne
peut nier dans tous les cas qu'il s'agit \k cVune violation flagrante
de droit international ; et nous ajouterons que celui qui se met
sciemment dans un cas semblable le fait a ses risques et perils.
Nous sommes, sur ce point, d'accord avec le jurisprudence
anglaise, avec cette restriction que le navire doit etre confisque
ainsi que la cargaison dans le seul cas ou elle appartient au
capitaine ou k l'arinateur. Dans le cas contraire. la cargaison
doit etre rendue. Si le navire qui a tente d'echapper & la visite
est enneini, charge de niarchandise neutre, celle-ci doit §tre
egalement rendue. Nous ne sanrions aller aussi loin que le juge
de l'Amiraute William Scott (Lord Stowell) qui, dans le cas
d'un navire neutre charge par des neutres, confisque le tout. II
est evident que, seuls, le capitaine et l'armateur qu'il represente
ont viole le droit, et que les chargeurs n'en sauraient rendus
responsables. (Le droit de visite, p. 49.)
Hall states that —
The right of capture on the ground of resistance to visit, and
that of subsequent confiscation, flow necessarily from the lawful-
ness of visit, and give rise to no question. If the belligerent
when visiting is within the rights possessed by a state in amity
with the country to which the neutral ship belongs, the neutral
master is guilty of an unprovoked aggression in using force to
prevent the visit from being accomplished, and the belligerent
may consequently treat him as an enemy and confiscate his ship.
The only point arising out of this cause of seizure which
requires to be noticed is the effect of resistance upon cargo when
made by the master of the vessel, or upon vessel and cargo
together when made by the officer commanding a convoy. The
English and American courts, which alone seem to have had
an opportunity of deciding in the matter, are agreed in looking
upon the resistance of a neutral master as involving goods in
the fate of the vessel in which they are loaded, and of an officer
in charge as condemning the whole property placed under his
protection. " I stand with confidence," said Lord Stowell, " upon
all fair principles of reason, upon the distinct authority of
Vattel, upon the institutes of other maritime countries, as well as
those of our own country, when I venture to lay it down, that by
the law of nations as now understood a deliberate and continued
resistance to search, on the part of a neutral vessel to a lawful
cruiser, is followed by the legal consequences of confiscation."
But the rules accepted in the two countries differ with regard
to property placed in charge of a belligerent. Lord Stowell, in
administering the law as understood in England, held that the
68 RESISTANCE TO CAPTURE.
immunity of neutral goods on board a belligerent merchantman
is not affected by the resistance of the master; for while on the
one hand he has a full right to save from capture the belligerent
property in his charge, on the other the neutral can not be
assumed to have calculated or intended that visit should be
resisted.
The American courts carry their application of the principle
that neutral goods in enemy's vessels are free to a further point,
and hold that the right of neutrals to carry on their trade in such
vessels is not impaired by the fact that the latter are armed.
(Hall, International Law, 5th ed., p. 729.)
Neutral property on enemy merchant vessel. — An en-
emy merchant vessel resisting search and endeavoring to
escape, according to the opinion in the case of the Cath-
arina Elizabeth and in other cases, is doing what it has
a right to do. Of course there would be little question of
the condemnation of all property belonging to the owner
of the vessel which was on board the vessel resisting the
search. The status of the neutral property would still
be under the principles of the Declaration of Paris of
1856.
By the Declaration of Paris, regarded as generally
binding, and binding by formal accession on the part
of most states —
The neutral flag covers enemy's goods, with the exception of
contraband of war.
Neutral goods, with the exception of contraband of war, are
not liable to capture under any flag.
To the principles of this Declaration it may be safely
said that the United States has adhered. Accordingly
the neutral goods even on an enemy merchant vessel
which had resisted search would not be liable to capture
unless such goods were contraband. Ordinarily a war
vessel would not wish " for immediate use " goods which
would not be under the category of conditional contra-
band, but in order that goods of this kind be included in
the list of conditional contraband they must have a bellig-
erent destination. If the neutral goods on the enemy
merchant vessel which resists search have a belligerent
PREEMPTION. 69
destination the right of preemption as conditional con-
traband would be operative. The appropriation of the
neutral goods would in general have to be based on need
rather than on wish for immediate use, i. e., the wish for
luxuries which might be on board and belong to the neu-
tral would not be sufficient ground for appropriation,
while the immediate need of flour might be a proper
ground.
Preemption. — In the case of the Haabet in 1800, Sir
William Scott states the general doctrine as to pre-
emption as held at that time:
The right of taking possession of cargoes of this description,
Commeatus or Provisions, going to the enemy's port, is no pecul-
iar claim of this country; it belongs generally to belligerent
nations. The ancient practice of Europe, or at least of several
maritime states of Europe, was to confiscate them entirely ; a
century has not elapsed since this claim has been asserted by
some of them. A more mitigated practice has prevailed in later
times of holding such cargoes subject only to a right of preemp-
tion, that is, to a right of purchase upon a reasonable compensa-
tion, to the individual whose property is thus diverted. I have
never understood that on the side of the belligerent this claim
goes beyond the case of cargoes avowedly bound to the enemy's
port, or suspected on just grounds to have a concealed destina-
tion of that kind, or that on the side of the neutral the same ex-
act compensation is to be expected which he might have demanded
from the enemy in his own port. The enemy may be distressed
by famine, and may be driven by his necessities to pay a famine
price for the commodity if it gets there; it does not follow that
acting upon my rights of war in intercepting such supplies I am
under the obligation of paying that price of distress. It is a
mitigated exercise of war on which my purchase is made, and no
rule has established that such a purchase shall be regulated
exactly upon the same terms of profit which would have followed
the adventure if no such exercise of war had intervened; it is a
reasonable indemnification and a fair profit on the commodity
that is due, reference being had to the original price actually
paid by the exporter and the expenses which he has incurred. As
to what is to be deemed a reasonable indemnification and profit,
T hope and trust that this country will never be found backward
in giving a liberal interpretation to these terms ; but certainly the
capturing nation does not always take these cargoes on the same
terms on which an enemy would be content to purchase them ;
much less are cases of this kind to be considered as cases of costs
70 RESISTANCE TO CAPTURE.
and damages, in which all loss of possible profit is to be laid upon
unjust captors; for these are not unjust captures, but authorized
exercises of the rights of war. (2 C. Robinson's Admiralty
Report, 174. ^
In June. 1804. Great Britain adopted "An act for regu-
lating naval prize of war " (27 and 28 Victoria, cap.
25). This act provides for preemption.
3S. Where a Ship of a foreign nation passing the seas laden with
naval or victualling stores intended to be carried to a port of any
Enemy of Her Majesty is taken and brought into a port of the
United Kingdom, and the purchase for the service of Her Majesty
of the stores on board the Ship appears to the Lords of the Ad-
miralty expedient without the condemnation thereof in a Prize
Court, in that case the Lords of the Admiralty may purchase, on
the account or for the service of Her Majesty, all or any of the
stores on board the Ship ; and the Commissioners of Customs may
permit the stores purchased to be entered and landed within any
port.
By the United States instructions issued June 20, 1898
(General Order 492), it was declared —
24. The title to property seized as prize changes only by the
decision rendered by the prize court. But if the vessel itself, or
its cargo, is needed for immediate public use, it may be converted
to such use. a careful inventory and appraisal being made by im-
partial persons and certified to the prize court.
In the same instructions section 4615 of the Revised
Statutes is cited to the effect that —
If the captured vessel, or any part of the captured property, is
not in condition to be sent in for adjudication, a survey shall be
had thereon and an appraisement made by persons as competent
and impartial as can be obtained, and their report shall be sent to
the court in which proceedings are to be had ; and such property,
unless appropriated for the use of the Government, shall be sold
by the authority of the commanding officer present, and the pro-
ceeds deposited with the assistant treasurer of the United States
most accessible to such court, and subject to its order in the
cause.
Pradier-Fodere says:
Dans des tout a fait exceptiouels, il est perinis de prendre
possession des provisions du navire saisi ou captur6; lorsque le
croiseur, par exemple, a besoin de houille ou manque de vivres,
et qu'il en trouve a bord du navire saisi, il est bien naturel qu'il
s'en empare. ma is on exige th£oriquement que ce soit par preemp-
PREEMPTION. 71
tion, et en prenant des mesures propres a offrir des garanties
suffisantes contre des abus toujours possibles de la part de ceux
qui, disposant de la force, ne sont que trop portes a s'en servir
sans moderation. (8 Droit International Public, p. 653, § 3185.)
Perels maintains that an attempt to justify seizure, on
payment of indemnity, of articles which may be of use
for war, such as provisions, on the ground of preemption
is an arbitrary extension of belligerent rights and should
be absolutely discountenanced.
In case of urgent need, however, the belligerent may
take on payment of ample indemnity neutral goods, par-
ticularly provisions bound toward the enemy state, even
when their military destination is not clear. This is not
based on the right of preemption, but flows from the
right of self-preservation in case of urgent necessity, and
is of the same character as the right of angary.
(Offentliche Seerecht der Gegenwart, sec. 46.)
The articles for the government of the Navy provide
for the removal of goods from a prize under certain
circumstances :
16. No person in the Navy shall take out of a prize, or vessel
seized as a prize, any money, plate, goods, or any part of her
equipment, unless it be for the better preservation thereof or
unless such articles are absolutely needed for the use of any of
the vessels or armed forces of the United States, before the same
are adjudged lawful prize by a competent court; but the whole,
without fraud, concealment, or embezzlement, shall be brought in,
in order that judgment may be passed thereupon ; and every
person who offends against this article shall be punished as a
court-martial may direct.
The appropriation of neutral goods which the com-
mander of the war vessel wishes which are on an enemy
merchant vessel not bound for any enemy destination
would be an act of entirely different character from
the appropriation of goods under similar conditions
which were of the nature of conditional contraband and
bound for an enemy destination. If the enemy merchant
vessel which resists search is bound for a neutral port
the right of preemption does not apply. The neutral
goods on this enemy merchant vessel when not having
enemy destination are simply liable to the inconvenience
72 RESISTANCE TO CAPTURE.
consequent upon the sending in of the vessel for adjudica-
tion. The mere wish of the captors of the vessel that
they may have these goods for immediate use is not
sufficient to justify appropriation even if full compensa-
tion is made. Of course there is no opposition from the
point of view of international law to the purchase by
agreement in advance of any such goods, but the appro-
priation of innocent goods of a neutral is an act liable to
give rise to serious complications.
Even in case of war on land, where the belligerent is in
full control and exercising jurisdiction over property, the
rules in regard to appropriation are strict.
Preemption in war on land. — In case of war on land it
was provided at The Hague in 1899 that —
Abt. 52. Neither requisition in kind nor services can be de-
manded from communes or inhabitants except for the necessities
of the army of occupation. They must be in proportion to the
resources of the country, and of such a nature as not to involve
the population in the obligation of taking part in military opera-
tions against their country.
These requisitions and services shall only be demanded on the
authority of the commander in the locality occupied.
The contributions in kind shall, as far as possible, be paid for
in ready money; if not, their receipt shall be acknowledged.
(Law and Customs of War on Land.)
American practice and opinion. — The American prac-
tice and opinion has generally been to allow the ap-
propriation or destruction of neutral property within
belligerent jurisdiction only on the ground of military
necessity, and even then full compensation must be paid
and, if possible, agreed upon in advance.
Where innocent neutral goods are in an enemy mer-
chant vessel bound for a neutral port no guilt can attach
to the goods because the merchant vessel attempts to
escape. Of course the goods would be liable to the con-
sequences if it should be necessary to fire upon the enemy
merchant vessel to bring her to. If the merchant vessel
should be sunk in this way there would be no claim on
the part of the neutral owner against the United States.
These goods would be liable, as other goods within the
CONCLUSION. 73
actual area of hostilities, to damages incident to legiti-
mate military operations.
The goods are innocent when the capture as stated in
Situation IV is made and the reason for the appropria-
tion is simply the captain's wish for such goods for im-
mediate use. As a general principle this wish would not
be a sufficient ground for appropriation of the goods.
A desire or wish, however ardent, is not the justification
which sanctions the taking of innocent neutral property
in the time of war any more than the taking of the same
property in the time of peace. Unless the property under
consideration is tainted with hostile character, it is as free
as under a neutral flag though subject to the inconvenience
due to the capture and adjudication of the vessel. The
only justification for its appropriation, therefore, would
not be the captain's wish for the property for immediate
use, but a military necessity such as to demand its appro-
priation. The Articles for the Government of the Navy
are in entire accord with the best practice in requiring
absolute need for the use of any of the vessels or armed
forces of the United States as justification for the removal
of neutral goods from a seized vessel in advance of the de-
cision of the prize court. Military necessity which would
justify the appropriation of neutral goods must be of
the nature of imperative need for self-preservation ; mere
convenience or desire is not a sufficient ground for such
seizure or appropriation. Full compensation must in all
cases be regarded as a sequence of such appropriation.
Conclusion. — The goods should not be treated as
hostile.
The goods should not be taken from the vessel except
for better preservation thereof or unless such articles are
absoluteh' needed for the use of any of the vessels or
armed forces of the United States. The appropriation
of innocent neutral goods must be justified by military
necessity, not by mere wish or desire.
Situation V.
War exists between the United States and State X.
Neutral merchant vessels bound for a fortified port of
State X and loaded for the most part with contraband are
overtaken on the high seas by vessels of the United States
Navy.
Some of these neutral merchant vessels are unsea-
worthy. some are overtaken at points too far from a prize
court to make it advantageous to send the vessels in,
others can not be cared for without impeding the action
of the United States naval forces, which are in danger of
immediate attack, and in other cases prize crews can not
be spared to take the captured neutral merchantman to
a prize court.
What action may be taken by commanders of vessels
of the United States Navy in such cases ?
SOLUTION.
(a) If the contraband cargo and the seized neutral ves-
sel have different OAvners, the contraband cargo, after
proper survey, appraisal, and inventory, and with con-
sent of the master, if in accordance with treaty provi-
sions, may be taken, and the vessel, if guilty only of the
carriage of contraband, should be dismissed and the
papers relating to the whole transaction should be for-
warded to the prize court.
(b) If the master does not consent the vessel and cargo
are liable to the usual penalties for contraband trade.
(c) If the neutral vessel and contraband cargo belong
to the same owner the contraband cargo may be treated
as in (a). The vessel, however, should, if possible, be
sent to a prize court for adjudication, otherwise the ves-
sel should be dismissed.
(d) Destruction, on account of military necessity, of
a neutral vessel guilty only of the carriage of contraband
entitles the owner to fullest compensation. Before de-
struction all persons and papers should be placed in
safety.
74
DISCUSSION IN 1905. 75
NOTES OX SITUATION V.
Discussion in 1905. — Topic IV, considered by the Naval
War College in 1905, was as follows:
Should the destruction of captured vessels be allowed before
adjudication by a prize court? If so, under what condition?
The conclusion of the Conference was as follows :
Enemy vessels. — If there are controlling reasons why enemy
vessels may not be sent in for adjudication, as unseaworthiness,
the existence of infectious disease, or the lack of a prize crew,
they may be appraised and sold, and if this can not be done they
may be destroyed. The imminent danger of recapture would jus-
tify destruction, if there was no doubt that the vessel was good
prize. But in all such cases all the papers and other testimony
should be sent to the prize court, in order that a decree may be
duly entered.
Neutral vessels. — If a seized neutral vessel can not for any rea-
son be brought into port for adjudication, it should be dismissed.
(Naval War College, International Law Topics and Discussions,
1905, pp. 62-76.)
The discussion in 1905 was more particularly concerned
with the conditions under which enemy vessels might
be destroyed.
In 1905 it was said:
The destruction of a neutral ship must be clearly distinguished
from the destruction of a belligerent ship even under the prin-
ciples at present generally accepted. If the belligerent's vessel
is good prize it may be lost to that belligerent from the time when
his opponent captures it. This is not always necessarily the
case, because it may be recaptured or a court for some reason
may not condemn the vessel. " Quarter-deck courts " should
be avoided, except in extreme instances, even in deciding on the
destruction of enemy vessels. Such vessels may have neutral
cargo, which may be in no way involved in the hostilities. The
principle of the Declaration of Paris that " neutral goods, with
the exception of contraband of war, are not liable to capture
under the enemy's flag " may be involved in such a manner as
to make great caution necessary in destroying vessels of the
enemy before adjudication.
Much greater care should be taken before destroying a neutral
vessel itself. (Ibid, p. 72.)
In Topic IV, 1905, attention was particularly directed
to the conditions under which enemy vessels might be
76 TREATMENT OF NEUTRAL MERCHANTMEN.
destroyed. In Situation V of 1907 it is the purpose to
give somewhat more consideration to the treatment of
cargoes on neutral vessels and to the treatment of neutral
vessels themselves.
Many grounds have been put forward as sufficient
for the destruction of private vessels that have been
seized in time of war. From the phraseology of the
rules that have been drawn up from time to time it
would seem that it had not entered the minds of some
writers that a neutral vessel could under any circum-
stances be destroyed before condemnation by a prize
court.
Restriction on movements of vessels with prize. — When
prizes could be brought into neutral ports the question
of destruction was not particularly pressing, as sale in
a neutral port was a possibility, or in case of unsea-
worthiness refitting could be undertaken there.
Most neutral states at the present time forbid the
entrance to their ports of war vessels of the belligerents
with prize. The following are examples of the prohibi-
tions :
An Italian royal decree of June 16, 1895, says:
Art. 12. Foreign ships of war and merchantmen armed for
cruising are forbidden to bring prizes into, or to arrest and
search vessels in, the territorial sea or in the sea adjacent to the
Italian islands, as well as to commit other acts which constitute
an offense to the rights of state sovereignty.
Great Britain in 1898 and in 1904 prohibited the en-
trance of prize.
Armed ships of either belligerent are interdicted from carry-
ing prizes made by them into the ports, harbors, roadsteads, or
waters of the United Kingdom, the Isle of Man, the Channel
Islands, or any of Her Majesty's colonies or possessions abroad.
France alloAved the entrance of war vessels with prize
in 1898 and in 1904.
The Government decides in addition that no ship of war of
either belligerent will be permitted to enter and to remain with
her prizes in the harbors and anchorages of France, its colonies
REGULATIONS AS TO DESTRUCTION. 77
and protectorates, for more than twenty-four hours, except in the
case of forced delay or justifiable necessity.
No sale of objects gained from prizes shall take place in the
said harbors and anchorages.
Regulations as to destruction of seized vessels. — The
regulations of different states in regard to the destruction
of seized vessels vary. The British regulations are
rather more definite than those of most other states.
In regard to destruction of captured vessels the British
Admiralty Manual of Prize Law of 1888 makes clear dis-
tinction between the treatment of neutral and of enemy
vessels.
303. In either of the following cases :
(1) If the Surveying Officers report the Vessel not to be in a
condition to be sent into any port for Adjudication ; or
(2) If the Commander is unable to spare a Prize Crew to navi-
gate the Vessel to Port of Adjudication, the Commander should
release the Vessel and Cargo without ransom, unless there is
clear proof that she belongs to the Enemy.
304. But if in either of these cases there be clear proof that
the Vessel belongs to the Enemy, the Commander should remove
her Crew and Papers, and, if possible, her Cargo, and then destroy
the Vessel. The Crew and the Cargo (if saved) should then be
forwarded to a proper Port of Adjudication in charge of a Prize
Officer, together with the Vessel's Papers and the necessary
Affidavits. Amongst the Affidavits should be one, to be made by
the Prize Officer, exhibiting the evidence that the Vessel belonged
to the Enemy, and the facts which rendered it impracticable to
send her in for Adjudication. (Page 86.)
The French Instructions Complement aires of 1870
grant great freedom in the treatment of neutral property.
Art. 20. Si une circonstance majeure forcait un croiseur a
detruire une prise, parce que sa conservation compromettrait sa
stcurite ou le succes de ses operations, il devrait avoir soin de
conserver tons les pa piers du bord et autres elements necessaires
pour permettre le jugement de la prise et l'ctablisseinent des in-
demnites k attribuer aux neutres dont la proprtete" non confiscable
aurait etc" detruite. On ne doit user de ce droit de destruction
qu'avec la plus grande reserve.
The instructions issued by the United States in 1898
(General Orderj No. 492) make no distinction between
neutral and enemy vessels seized as prize.
78 TREATMENT OF NEUTRAL MERCHANTMEN.
28. If There are controlling reasons why vessels may not be
sent in for adjudication, as unseaworthiness, the existence of in-
fectious disease, or the lack of a prize crew, they may be ap-
praised and sold: and if this can not be done they may be de-
stroyed. The imminent danger of recapture would justify destruc-
tion, if there was no doubt that the vessel was good prize. But,
in all such cases, all the papers and other testimony should be
sent to the prize court, in order that a decree may be duly entered.
The Russian Prize Regulations of March 25, 1895.
make no distinction in the treatment of detained vessels,
whether enemy or neutral vessels.
21. In extraordinary cases, when the preservation of a detained
vessel proves impossible in consequence of its bad condition or
extremely small value (sic), the danger of its recapture by the
enemy, or the considerable distance or blockade of the ports, as
well as of danger threatening the detaining vessel or the suc-
cess of its operations, the naval commander is permitted, on his
personal responsibility, to bum or sink the detained vessel after
having first taken all the people off it, and as far as possible the
cargo on board, and also after having taken measures for pre-
serving the documents and other objects on board, and which
might prove essential in elucidating matters when the case is
examined according to the method prescribed for prize cases.
(U. S. Foreign Relations, 1904, p. 738.)
The Japanese regulations issued during the Chino-
Japanese war of 1894 provide:
Article IS. After detention, the commander should as soon as
possible himself bring the vessel to the port where the prize court
is, or the port nearest the prize court.
If the state of things renders it necessary, he may order the
officer who secured the vessel (art. 14) or another officer to em-
bark on board and bring the vessel to the above-named port.
Article 19. If the quantity of provisions, the state of the
weather, or other circumstances render it necessary, the com-
mander may call at the nearest port. When the circumstances
admit, he should as soon as possible go to the port stated in
article IS.
Article 20. When the commander finds that the detained ves-
sel is unfit to be sent to the port stated in article 18, or when the
commander is not able to send a crew to the vessel for the pur-
pose of bringing her to the above-named port, or when he finds
the cargo is unfit to be sent to that port, the commander may
bring the vessel to the nearest port to where he is, and may act
as the state of things permits him.
JAPANESE REGULATIONS. 79
In this case the commander should cause a survey thereof to
be made by the officers of his ship the best qualified for the duty,
and the surveying officers should report in writing the details of
the matter to the commander, and the commander should forward
the report to the prize court.
When the commander causes the cargo to be sold, the affidavit
may be in Form No. 4. In other cases, in which the detained
vessel is brought to the nearest port, the affidavit may be in Form
No. 5.
In the above-meutioned case, if the vessel is not an enemy's
vessel, the commander should release the vessel after confiscation
of the contraband goods.
Article 21. The sale may be made in any neutral port where
the local authorities may be willing to allow the sale to take
place.
Aeticle 22. If the enemy's vessels are unfit to be sent to a port,
as stated in article 18, the commander should break up the vessels,
after taking the crew, the ship's papers, and the cargo, if possible,
into his ship. The crew, the ship's papers, and the cargo should
be sent to a port, as stated in article 18. (Takahashi, Interna-
tional Law During the Chino- Japanese War, p. 183.)
The Japanese regulations of March 7, 1904, are much
more general in character.
Aeticle XCI. In the following cases, and when it is unavoid-
able, the captain of the man-of-war may destroy a captured vessel,
or dispose of her according to the exigency of the occasion. But
before so destroying or disposing of her he shall transship all per-
sons on board and, as far as possible, the cargo also, and shall
preserve the ship's papers and all other documents required for
judicial examination :
1. When the captured vessel is in very bad condition and can
not be navigated on account of the heavy sea.
2. When there is apprehension that the vessel may be recap-
tured by the enemy.
3. When the man-of-war can not man the prize without so re-
ducing her own complement as to endanger her safety.
Aeticle XCII. In the cases of the above article the captain of
the man-of-war shall direct the prize officer to prepare a certifi-
cate stating the circumstances of inability to send in the prize
and the details of her disposal, and to send it to the nearest
prize court, together with persons and cargo removed from the
vessel, the ship's papers, and all other documents required for
judicial examination.
These regulations have not received the same interpre-
tation in all cases.
80 TREATMENT OF NEUTRAL MERCHANTMEN.
Oppenheim says:
Japan, which according to article 20 of her prize law of 1894
ordered her captors to release neutral prizes after confiscation of
their contraband goods, in case the vessels can not be brought into
a port, altered her attitude in 1904, and allowed in certain cases
the destruction of neutral prizes. (2 International Law, p. 471,
sec. 431.)
Of the above statement J. B. Moore says :
A close scrutiny of article 20 of the Japanese prize law of 1894
seems scarcely to bear out this statement. The article does not
in terms embrace vessels not brought in, but refers to cases in
which the prize was, in conformity with article 18, brought in,
if not to the port where the prize court sits, then, in conformity
with article 19, to the port nearest the place of capture; and in
this relation it provides : " In the above-mentioned cases, if the
vessel is not an enemy's vessel, the commander should release
the vessel after confiscation of the contraband goods."
A stronger implication, to the effect stated by Oppenheim, might
have been drawn from article 22 of the prize law of 1894, which
reads : " If the enemy's vessels are unfit to be sent to a port as
stated in article 18, the commander should break up the vessels,
after taking the crew, the ship's papers, and the cargo, if possible
into his ship. The crew, the ship's papers, and the cargo should
be sent to a port as stated in article 18." (7 Moore, Interna-
tional Law Digest, p. 524.)
The Instructions to Blockading Vessels and Cruisers
issued by the United States June 20, 1898 (General Order
No. 492), states:
24. The title to property seized as prize changes only by the
decision rendered by the prize court. But, if the vessel itself,
or its cargo, is needed for immediate public use, it may be con-
verted to such use, a careful inventory and appraisal being made
by impartial persons and certified to the prize court.
British cases and opinions. — Professor Holland, in a
letter to the Times, London, referring to the Kussian
rules, also refers to several cases.
The Actaeon, an American ship, in 1814, under British
license, was destroyed by the British war ship La Hogue.
The captain of La Hogue could not spare a prize crew to
send the Actaeon to port and did not deem it wise to allow
the Actaeon to proceed, as she might disclose the position
and strength of his force. He therefore destroyed the
BKITISH CASES AND OPINIONS. 81
Actaeon with her cargo. The court decided that while
the action of the British captain might be meritorious as
toward his own Government, it might not properly entail
loss upon the innocent owner.
Lastly, it has been said that Captain Capel could not spare
men from his own ship to carry the captured vessel to a British
port, and that he could not suffer her to go into Boston, because
she would have furnished important information to the Americans.
These are circumstances which may have afforded very good rea-
sons for destroying this vessel, and may have made it a very meri-
torious act in Captain Capel as far as his own Government is
concerned, but they furnish no reason why the American owner
should be a sufferer. I do not see that there is anything that can
be fairly imputed to the owner as contributing in any degree to
the necessity of capturing or destroying his property, and I think,
therefore, that he is entitled to receive the fullest compensation
from the captor. (2 Dodson's Admiralty Report, p. 48. The Felic-
ity, Ibid., p. 381, stated in International Law Topics and Discus-
sion, Naval War College, 1905, p. 63.)
In 1855 Doctor Lushington gave his opinion in the case
of the Leucade.
The destruction of a vessel under hostile colors is a matter of
duty ; the court may condemn on proof which would be inadmis-
sible or wholly irregular in the instance of a neutral vessel. It
may be justifiable or even praiseworthy in the captors to destroy
an enemy's vessel. Indeed, the bringing to adjudication at all of
an enemy's vessel is not called for by any respect to the enemy
proprietor where there is no neutral property on board. But for
totally different considerations, which I need not now enter upon,
where a vessel under neutral colors is detained, she has the right
to be brought to adjudication according to the regular course of
proceeding in the prize court; and it is the very first duty of the
captor to bring it in, if it be practicable.
From the performance of this duty the captor can be exonerated
only by showing that he was a bona fide possessor, and that it was
impossible for him to discharge it. No excuse for him as to
inconvenience or difficulty can be admitted as between captors and
claimants. If the ship be lost, that fact alone is no answer ; the
captor must show a valid cause for the detention as well as for
the loss. If the ship be destroyed for reasons of policy alone, as
to maintain a blockade or otherwise, the claimant is entitled to
costs and damages. The general rule, therefore, is that if a ship
under neutral colors is not brought to a competent court for
adjudication, the claimants are, as against the captor, entitled
25114—08 G
82 TREATMENT OF NEUTRAL MERCHANTMEN.
to costs and damages. Indeed, if a captor doubt his power to
bring a neutral vessel to adjudication, it is bis duty, under ordi-
nary circumstances, to release ber. (Spink's Admiralty Reports,
217.)
These British cases seem to some to admit the right of
destruction of neutral vessels under circumstances of
grave necessity under penalty not merely of restitution of
value but of costs and damages.
In his letter to the London Times dated August 1, Pro-
fessor Holland thus comments upon the practice :
There is no doubt that by the Russian regulations of 1895, ar-
ticle 21, and instructions of 1901, article 40, officers are empow-
ered to destroy their prizes at sea, no distinction being drawn
between neutral and enemy property, under such exceptional cir-
cumstances as the bad condition or small value of the prize, risk
of recapture, distance from a Russian port, danger to the im-
perial cruiser or to the success of her operations. The instruc-
tions of 1901, it may be added, explain that an officer " incurs
no responsibility whatever " for so acting if the captured vessel
is really liable to confiscation and the special circumstances im-
peratively demand her destruction. It is fair to say that not dis-
similar, though less stringent, instructions were issued by France
in 1870 and by the United States in 1898 ; also that, although the
French instructions expressly contemplate " l'etablissement des
indemnites k attribuer aux neutres," a French prize court in 1870
refused compensation to neutral owners for the loss of their
property on board of enemy ships burnt at sea.
The question, however, remains whether such regulations are
in accordance with the rules of international law. The state-
ment of these rules by Lord Stowell, who speaks of them as
" clear in principle and established in practice," may, I think, be
summarized as follows : An enemy's ship, after her crew has been
placed in safety, may be destroyed. Where there is any ground
for believing that the ship, or any part of her cargo, is neutral
property, such action is justifiable only in cases of "the gravest
importance to the captor's own state," after securing the ship's
papers and subject to the right of neutral owners to receive full
compensation. (Actaeon, 2 Dods., 48; Felicity, lb., 381; sub-
stantially followed by Dr. Lushington in Leucade, Spinks, 221.)
It is not the case, as is alleged by the Novoe Vremya, that any
British regulations " contain the same provisions as the Russian "
on this subject. On the contrary, the Admiralty Manual of 1888
allows destruction of enemy vessels only, and goes so far in the
direction of liberality as to order the release, without ransom, of
a neutral prize which, either from its condition or from lack of a
prize crew, can not be sent in for adjudication. The Japanese in-
BRITISH CASES AND OPINIONS. 83
structions of 1894 permit the destruction of only enemy vessels;
and article 50 of the carefully debated " Code des prises " of the
Institut de Droit International is to the same effect. It may be
worth while to add that the eminent Russian jurist, M. de Mar-
tens, in his book on international law, published some 20 years
ago, in mentioning that the distance of her ports from the scenes
of naval operations often obliges Russia to sink her prizes, so
that " ce que les lis maritimes de tous les etats considerent
comme un moyen auquel il n'y a lieu de recourir qu'a la deniere
extremite, se transformera necessairement pour nous en regie
normale," foresaw that " cette mesure d'un caractere general
soulevera indubitablement contre notre pays un mecontentement
universel." {The Times, August 6, 1904.)
Lord Landsdowne, in a communication sent to the Brit-
ish ambassador at St. Petersburg, August 10, 1904, pro-
tests against the destruction of neutral ships (cited in
Topic IV, 1905) :
The position, already sufficiently threatening, is aggravated by
the assertion on behalf of the Russian Government that the captor
of a neutral ship is within his rights if he sinks it, merely for the
reason that it is difficult, or impossible, for him to convey it to a
national port for adjudication by a prize court. We understand
that this right of destroying a prize is claimed in a number of
cases ; among others, when the conveyance of the prize to a prize
court is inconvenient because of the distance of the port to which
the vessel should be brought, or when her conveyance to such a
port would take too much time or entail too great a consump-
tion of coal. It is, we understand, even asserted that such de-
struction is justifiable when the captor has not at his disposal a
sufficient number of men from whom to provide a crew for the
captured vessel. It is unnecessary to point out to your excellency
the effects of a consistent application of these principles. They
would justify the wholesale destruction of neutral ships taken by
a vessel of war at a distance from her own base upon the ground
that such prizes had not on board a sufficient amount of coal to
carry them to a remote foreign port — an amount of coal with
which such ships would probably in no circumstances have been
supplied. They would similarly justify the destruction of every
neutral ship taken by a belligerent vessel which started on her
voyage with a crew sufficient for her own requirements only, and
therefore unable to furnish prize crews for her captures. The
adoption of such measures by the Russian Government could not
fail to occasion a complete paralysis of all neutral commerce.
It appears to His Majesty's Government that no pains should
be spared by the Russian Government in order to put an end
without delay to a condition of things so detrimental to the com-
84 TREATMENT OF NEUTRAL MERCHANTMEN.
inerce of this country, so contrary to acknowledged principles of
international law and so intolerable to all neutrals. You should
explain to the Russian Government that His Majesty's Govern-
ment does not dispute the right of a belligerent to take adequate
precautions for the purpose of preventing contraband of war, in
the hitherto accepted sense of the words, from reaching the
enemy; but they object to, and can not acquiesce in, the introduc-
tion of a new doctrine under which the well-understood distinc-
tion between conditional and unconditional contraband is alto-
gether ignored, and under which, moreover on the discovery of
articles alleged to be contraband, the ship carrying them is, with-
out trial and in spite of her neutrality, subjected to penalties
which are reluctantly enforced even against an enemy's ship
(Parliamentary Papers, Russia, No. 1 (1905), p. 12.)
The Knight Commander case. — The sinking of the
Knight Com-mander in 1904 during the Russo-Japanese
war has attracted general attention and caused much dis-
cussion. The Knight Commander was a British steamer
and was captured by a Russian cruiser and sunk before
adjudication by a prize court.
Attitude of the United States. — In regard to the ru-
mored sinking of the Knight Commander during the
Russo-Japanese war in 1904, the United States cabled
its representatives in Russia :
Department of State,
Washington, July 30, 190- f f .
(Mr. Loomis instructs Mr. Eddy to call the attention of the
minister of foreign affairs to the treaty of 1854, and that, as
legitimate commerce is carried on by American ships with Japa-
nese ports and the Far East, the United States Government, con-
sidering the above treaty and section 1, article 5, of the Russian
proclamation of rules of conduct in the war between Russia and
Japan, expects, and should the contingency arise, shall claim
rights under that treaty or international law.
As it is represented that the Knight Commander was under
American charter and was carrying American property, instructs
him to inquire whether that vessel was sunk by the commander
who made the seizure, and to inform the Russian Government
that if such is the case the Government of the United States
would view with the gravest concern the application of similar
treatment to American vessels and cargoes, and that this Govern-
ment reserves all rights of security, regular treatment, and
reparation for American cargo on board the Knight Commander
and in any seizure of American vessels.) (U. S. Foreign Rela-
tions, 1904, p. 734.)
KNIGHT COMMANDER CASE. 85
Decision of Vladivostok prize court. — The sinking of
the Knight Commander during the Russo-Japanese war
in 1904 was considered by the Russian prize court at
Vladivostok, which rendered its decision on August 3-
16, 1904. The decision gives the following statements:
The facts of the case are as follows: On July 11/24, about
6 a. m., a separate detachment of cruisers of the Pacific Ocean
squadron under command of Rear-Admiral Jessen, consisting
of cruisers Rossia (flagship), Gromoboi and Rurik, while in
latitude 34° 21' N., longitude 138° 53'.5 E., to southwest of
entrance to Gulf of Tokio, perceived a merchant steamer. Rossia
gave chase, and when within 15 or 20 cables hoisted signal
" stop," and then sent, one after another, two blank shots, then
two projectiles under her bow as steamer continued on her course
at full speed for entrance of Tokio Gulf. The steamer then
stopped and hoisted British commercial flag. By order of
commander of detachment, Rossia hoisted signal " Master come
on board with papers," but as this order was not obeyed, a party
headed by Lieutenant Favrishenko and Sub-Lieutenant Aminoff
was sent aboard to examine steamer's papers and cargo. Ex-
amination proved that J. R. Durant was master, that she was
on voyage to Japan with cargo consisting of railway material,
bridge material, machinery, and various articles. The master
of the steamer was not able to present any documents of his
cargo, but examination of the holds showed that they were filled
with contraband exclusively, the other articles constituting an
unimportant portion. After examination the officers returned
to the cruiser, bringing the master and papers along. Having
inquired of the master why there were no bills of lading amongst
the papers, and learning there was coal for four days only, Rear-
Admiral Jessen informed the master that the steamer was subject
to confiscation, and as she had not sufficient coal to take her into
a Russian port, she would be destroyed. Half an hour was
given for removal of the crew. After removal of crew she was
sunk by explosion of cartridges at 9.15 a. m. On return of
cruiser division to Vladivostok, the matter of sinking of steamer
was submitted to the prize court. Examination of master's
papers showed that steamer was British register, built in Yarrow
in 1890, of 9,620 displacement, 4,305 and 2,716 registered tonnage
and speed of 11 kuots. Her registry was from Liverpool, No.
97801, and steamer belonged to Robert Low Greenshields, of
Liverpool. From entries in log and testimony of master it was
learned that until December, 1903, the vessel made voyages be-
tween Calcutta and other East Indian ports. In December she
was chartered by the Austrian Lloyd for a trip to Trieste and
Venice. From Venice steamer chartered by an Austrian firm
in Trieste to carry coal for machinery and private cargo to Mes-
86 TREATMENT OF NEUTRAL MERCHANTMEN.
sina, then from Palermo to load 25,000 cases of lemons and
general cargo for New York, where the charter lapsed. In
New York the steamer was not chartered by anyone, but grad-
ually received various cargo, and was sent by orders of the agents
of the ship's owner to Singapore, Manila, Shanghai, Yokohama,
and Kobe, where this voyage was to end. In regard to the
cargo for which the master, Durant, presented no bills of lading
or even manifest, the court could only form a notion of that por-
tion addressed to Japanese ports of Yokohama and Kobe, which
was in the steamer at time of capture. Ship's papers being
missing, the court took the evidence of the two boarding officers,
Lieutenant Favrishenko and Baron Aminoff, in two private
memorandum books, presented by the latter. From the data,
when carefully confronted one side with the other, we may
conclude that the cargo at moment of seizure of ship consisted of
the following articles: Rails, bridge materials, various railway
material, steel, steel sheets, nails, wire, pipes, wheels, tar, acids,
shovels, and a small quantity of assorted cargo consisting of
paint, clothing, leather, sailcloth, tin, hardware, wood, and
small articles, as ink, perfumery, soap. Thus it may be con-
sidered as fully proven that the Knight Commander was arrested
by the Russian cruisers while carrying contraband of war into
the enemy's ports.
After examination of the evidence the court reached
the following conclusion:
Therefore the court feels convinced that the following is indu-
bitably proven.
(1) The fact that the owner of the steamer Knight Commander
having performed illegal acts, directed to make more effective
the efforts of our antagonist by carrying to him at Chemulpo,
the theater of war directly, articles of military contraband.
(2) The suppression by the master of said steamer of an en-
tire file of important documents relating to his vessel and to her
cargo as well as his undoubted knowledge that he was conveying
articles of military contraband to the enemy ; and
(3) The presence on said steamship at the moment of being
seized of military contraband in quantity indubitably exceeding
one-half of her entire cargo.
On these grounds, and taking into consideration the actual
facts of the present case as provided for by articles 5, 8, 13, of
the statutes of naval prizes, the prize court finds :
(1) That the Knight Commander was arrested in a legal man-
ner in compliance with the rules enacted in articles 2, 3, 15-17
of the statutes ; and
(2) That the said steamer having been caught conveying mili-
tary contraband to the enemy in quantity exceeding one-half of
the cargo, as well as the mentioned contraband, appear to be legal
KNIGHT COMMANDER CASE. 87
prizes, and decrees to adjudge the steamer Knight Commander
and the contraband cargo that was in her at the time of her seiz-
ure as subject to confiscation as legal prizes.
Appeal from the Vladivostok decision. — In the appeal
from the decision of the Vladivostok court to the higher
prize court, the attorney for the owners of the steamer
and for the owners of the sunken cargo concludes, on
review of the evidence, that —
Therefore the only action that should have been taken in this
case was to arrest the ship and bring her into the nearest Russian
port to land the contraband, but in no case to sink the steamer.
Under the circumstances when the steamer was arrested, taking
her into a Russian port presented scarcely any difficulty what-
ever; for (1) because there was on the steamer, as seen from
the record, about 120 tons of coal, which, allowing for a ten-knot
speed, would have been sufficient for four days, distance of nearly
1,000 miles. Whereas the distance to the nearest Russian port,
Kersakovsk or Saghalin, from Yokohama is considered 750 miles,
and (2) though the vessel was stopped 15 miles off the entrance
of the Gulf of Tokio, no enemy was seen nor was there any evi-
dence of his proximity, whereas these circumstances exactly were
deemed extraordinary and the steamer was sunk. The prize
court in its decision with reference to the quantity of the cargo
was guided by the same data as the naval authority, whereas
had they acted in conformity with article 71, statutes on prizes,
by virtue of which in similar cases the shipper must be sum-
moned by publication, in such case most probably there would
have been at the disposal of the court a sufficient number of
proofs of the faulty character of the decision regarding the
quantity of cargo adjudged military contraband.
Relying upon all the above statements, I have the honor to
ask the highest prize court to revoke the decision of the Vladi-
vostok prize court as incorrect, and to decree that the sinking
of the Knight Commander was unjustifiable, and that the owners
both of the steamer and cargo are entitled to receive remuneration
for the sinking of the one and the other.
Decision on the appeal. — The following telegram ex-
plains the action upon the appeal in the case of the
Knight Commander:
American Embassy,
St. Petersburg, December 5, 1905.
(Mr. Eddy reports that the decision in the case of the Knight
Commander, rendered on Saturday, maintains the finding of the
Vladivostok prize court in regard to condemnation of the vessel
and cargo, that the protest of Mr. Berline concerning neutral
88 TREATMENT OF NEUTRAL, MERCHANTMEN.
goods was allowed, and that that matter was referred to the
Libau prize court for revision under article 88, naval prize regula-
tions.) (U. S. Foreign Relatious, 1905, p. 754.)
The article 88 above referred to is:
88. Matters concerning indemnification for losses arising as a
result of the detention, destruction, perishing, or injury of mer-
chant vessels and cargoes are transacted in port prize courts, and
are begun only at the instance of parties who have sustained
losses or their agents. The rights of parties in the matters men-
tioned are enjoyed by the persons who have suffered loss, or their
agents, and by the judge-advocate as representative of the in-
terests of the Government. (U. S. Foreign Relations, 1904, p. 746.)
Review of the case. — There is no contention that the
condition of the Knight Commander was bad, that its
value was extremely small, that there was danger of re-
capture, or that the distance from a port was great,
though it was maintained that there was coal enough only
for four days, and on this ground the vessel was de-
stroyed. As the court decision says:
Having inquired of the master why there were no bills of lad-
ing among the papers, and learning there was aboard coal for
four days only, Rear- Admiral Jessen informed the master that
the steamer was subject to confiscation, and as she had not suffi-
cient coal to take her into a Russian port, she would be destroyed.
Half an hour was given for removal of the crew. After removal
of the crew she was sunk by explosion of cartridges at 9.15 a. m.
The naval officer thus constituted a " quarter-deck
prize court " decided the neutral vessels liable to confis-
cation and destroyed vessel and cargo.
In the case of the Knight Commander the prize court
at Vladivostok was largely military in character, made
up as follows: " Major-General Knipper, chairman; Cap-
tain (second rank) Simonoff, Lieutenant- Colonel Eger-
man, Public Councillor Stein, Collegiate Secretary Che-
borenko, Procurator Titular Councillor Lazarevsky, Col-
legiate Secretary Engelhardt, secretary."
Reciting certain facts in regard to cargo and voyage,
this court says, " Thus it may be considered as fully
proven that the Knight Commander was arrested by the
Russian cruisers while carrying contraband of war into
the enemy's ports."
KNIGHT COMMANDER CASE. 89
It may be noted that the articles mentioned, such as
rails, railway material, wire, acids, wheels, clothing,
hardware, perfumery, soap, etc., are generally regarded
as contraband only when destined for the enemy's mili-
tary or naval use. The simple destination of such articles
of conditional contraband nature to the ports of an enemy
does not necessarily make them liable to capture.
The absence, loss, or destruction of certain of the
proper ship's papers which was set forth before the court
is not a ground for destruction, but may be ground for
seizure of a vessel.
The destination was not proven beyond a doubt, though
supposed for a part of the cargo to be Chemulpo, which,
though in Korea, the Russian report names as " the thea-
ter of war."
That the owner of the vessel was involved in the
transaction other than as a carrier is not affirmed.
The amount of goods of various classes is admittedly
in doubt. The nature of the cargo was bulky and of
such character as to make it impossible for the visiting
party of two or three to make sure it was conditional
contraband.
In Attorney Bagenoff's appeal from the decision of the
Vladivostok court it is claimed that the trial was illegal
because—
1. The procedure was irregular and the evidence in-
sufficient and ex parte.
2. The absence of certain of the ship's papers would,
according to Russian instructions 18 and 20, permit only
search and detention of the vessel.
3. The examination of the cargo was superficial and
indefinite by looking through the hatchways into the
holds, and the testimony of the examining officers was
not in agreement.
Professor Woolsey^s opinion. — In the discussion of the
case of the Knight Commander, Professor Woolsey, in
an article appearing since this Situation was prepared,
says:
These are the considerations involved :
(1) The injustice of penalizing a ship not shown to be guilty.
90 TREATMENT OF NEUTRAL MERCHANTMEN.
(2) The insufficiency of an ex parte examination of cargo at
sea.
(3) Validity of excuses for destruction.
(4) The doctrine of conditional contraband; its application to
this cargo.
(5) Is destruction ever permissible?
(6) Is destruction lawful subject to compensation?
So far as I am aware the injustice of destruction attaching as
a penalty to the neutral ship, even granting that it is carrying
contraband, has not been sufficiently emphasized in the Knight
Commander case.
The argument is this : To condemn a ship carrying contraband
it must be shown that it belonged to the owner of the contraband
or that the contraband formed so large a part of the cargo as to
prove complicity. This is an intricate business of a highly judicial
nature, demanding the production of papers and examination of
witnesses. It will be later shown what grave doubt existed as to
the really contraband character of the cargo in question. But,
laying this aside, the case in point shows us a penalty, namely,
the loss of the ship, which according to the accepted rules govern-
ing contraband would not have been inflicted by any well-regu-
lated prize court, unless the owner of the ship was shown to be
the owner of the cargo as well, as to which there is no proof that
the searching officer made inquiry. Thus we find the case to in-
volve an enlargement of the accepted penalties for carrying con-
traband.
2. The vast difference between the cursory ex parte judgment
upon all the facts in a ship's case and the judicial examination
of the same is also to be noted as a sound reason against the prac-
tice we are considering. In port the cargo can be landed, its
character ascertained, its destination learned, and witnesses sum-
moned in proof of all, beside that evidence which the ship's papers
give. This trial, before a court trained to judge the credibility of
evidence, if properly conducted, creates so strong a presumption
of guilt or innocence that few governments will venture to chal-
lenge the verdict. It must be admitted that the prize court of first
instance sitting at Vladivostok seems to have been scarcely a
judicial body it seems to have existed for condemnation only.
After discussing other questions raised by the destruc-
tion of the Knight Commander, Professor Woolsey refers
to the distinction between " compensation paid for a
destroyed neutral ship as implying a penalty for an un-
lawful act and compensation interpreted as the price to
CASE OF KOW-SHING. 91
be paid by the belligerent for destruction as a military
necessity acting within its rights." He says:
With this distinction clearly in mind and the jus angariae to
justify destruction on account of the military necessity alluded
to by Professor Holland, it is contended that the only reason
for exceptions to the rule disappears, and that we are justified
in laying down as probably the usage of to-day — with the sole
exception of Russia — that neutral ships which can not be taken
before a court for trial must be released. If military necessity
demands, they may be appropriated or destroyed subject to full
payment.
In defense of this rule are the following considerations: This
is substantially the usage of to-day except in Russia. This is the
opinion almost unanimous of British and American writers.
Continental publicists, while not unanimous, are fairly favorable
to this rule. Neutral states demand it as a reasonable measure,
in their interest. It is a logical rule, because otherwise you are
enlarging the penalty of carrying contraband, making ship liable
with goods, and conferring improper judicial authority upon a
naval officer not trained for it. If this is not the rule, yet it is a
reasonable rule, and as it is the fashion now-a-days to say, the
next Hague Conference should make it a rule. (16 Tale Law
Journal, p. 567 ff.)
Later Russian regulations. — The protests in regard to
the sinking of the Knight Commander led to the issue of
new orders.
The Russian instructions of August 5, 1905, leave some
doubt by making a distinction between " direct necessity n
and " emergency."
Russian vessels were not to sink neutral merchantmen with
contraband on board in the future, except in case of direct neces-
sity, but in case of emergency to send prizes into neutral ports.
Case of the Kow-Shing. — On July 25, 1894, the Kow-
Shing, a British vessel, engaged in Chinese transport
service in the Chino-Japanese war, and having on
board about 1,100 troops, was stopped and ordered to
follow a Japanese war ship to port. The Chinese on
board the transport refused to allow this. The Japanese
war ship sunk the Kow-Shing. The action of the Jap-
anese war ship has been generally supported as an act of
war, the transport being engaged in the military service
92 TREATMENT OF NEUTRAL, MERCHANTMEN.
of the enemy. (Takahashi, International Law during
the Chino- Japanese War, p. 24.)
Professor Holland's opinion. — Professor Holland, in a
letter to the London Times, says of the sinking of the
Kow-Shing :
The Kow-Shing, therefore, before the first torpedo was fired,
was, and knew that she was, a neutral ship engaged in the trans-
port service of a belligerent. (Her flying the British flag,
whether as a ruse de guerre or otherwise, is wholly immaterial.)
Her liabilities as such a ship were twofold:
1. Regarded as an isolated vessel, she was liable to be stopped,
visited, and taken in for adjudication by a Japanese prize court.
If, as was the fact, it was practically impossible for a Japanese
prize crew to be placed on board of her, the Japanese commander
was within his right in using any amount of force necessary to
compel her to obey his orders.
2. As one of a fleet of transports and men-of-war engaged in
carrying reinforcements to the Chinese troops on the mainland,
the Kow-Shing was clearly part of a hostile expedition, or one
which might be treated as hostile, which the Japanese were en-
titled, by the use of all needful force, to prevent from reaching
its destination. The force employed seems not to have been in
excess of what might lawfully be used, either for arrest of an
enemy's neutral transport or for barring the progress of a hostile
expedition. The rescued officers also having been set at liberty
in due course, I am unable to see that any violation of the rights
of neutrals has occurred. No apology is due to our Government,
nor have the owners of the Kow-Shing or the relatives of her
European officers who may have been lost any claim for com-
pensation. I have said nothing about the violation by the Jap-
anese of the usages of civilized warfare (not of the Geneva Con-
vention, which has no bearing upon the question) which would
be involved by their having fired upon the Chinese troops in the
water; not only because the evidence upon this point is as yet
insufficient, but also because the grievance, if established,
would affect only the rights of the belligerents inter se; not the
rights of neutrals, with which alone this letter is concerned. I
have also confined my observations to the legal aspects of the
question, leaving to others to test the conduct of the Japanese
commander by the rules of chivalrous dealing or of humanity.
Your obedient servant,
T. E. Holland.
Athen^um Club, August 6.
(Reprinted in Takahashi, International Law during the Chino-
Japanese War, p. 41.)
OPINION OP UNITED STATES COURT. 93
United States opinion as to court and prize. — In 1851
the case of Jecker v. Montgomery in the Supreme Court
of the United States gave rise to several questions.
This case arises upon the capture of the ship Admittance during
the late war with Mexico by the United States sloop of war
Portsmouth, commanded by Captain Montgomery.
The Admittance was an American vessel, and after war was
declared sailed from New Orleans, with a valuable cargo, shipped
at that place. She cleared out for Honolulu, in the Sandwich
Islands, and was found by the Portsmouth at Saint Jose, on the
coast of California, trading, as it was alleged, with the enemy.
Before this capture was made, a prize court had been estab-
lished at Monterey, in California, by the military officer exercising
the functions of governor of that province, which had been taken
possession of by the American forces. A chaplain belonging to one
of the ships of war on that station was appointed alcalde of Mon-
terey, and authorized to exercise admiralty jurisdiction in cases of
capture. The court was established at the request of Commodore
Biddle, the naval commander on that station, and sanctioned by
the President of the United States, upon the ground that prize
crews could not be spared from the squadron to bring captured
vessels into a port of the United States, and the officers of the
squadron were ordered to carry their prizes to Monterey and libel
them for condemnation in the court above mentioned, instead of
sending them to the United States.
In pursuance of this order the Admittance was carried to
Monterey and condemned by the court as lawful prize, and the
vessel and cargo sold under this sentence. The seizure at Saint
Jose was made on the 7th of April, 1847, and the ship and cargo
condemned on the 1st of June, in the same year.
*******
All captures jure belli are for the benefit of the sovereign under
whose authority they are made, and the validity of the seizure
and the question of prize or no prize can be determined in his own
courts only, upon which he has conferred jurisdiction to try the
question,, and under the Constitution of the United States the
judicial power of the General Government is vested in one Su-
preme Court and in such inferior courts as Congress shall from
time to time ordain and establish. Every court of the United
States, therefore, must derive its jurisdiction and judicial author-
ity from the Constitution or the laws of the United States, and
neither the President nor any military officer can establish a
court in a conquered country, and authorize it to decide upon the
rights of the United States or of individuals in prize cases, nor
to administer the laws of nations.
The courts established or sanctioned in Mexico during the war
by the commanders of the American forces were nothing more
94 TREATMENT OF NEUTRAL. MERCHANTMEN.
than the agents of the military power, to assist it in preserving
order in the conquered territory and to protect the inhabitants
In their property and persons while it was occupied by the Ameri-
can arms. They were subject to the military power, and their
decisions under its control, whenever the commanding officer
thought proper to interfere. They were not courts of the United
States, and had no right to adjudicate upon a question of prize
or no prize, and the sentence of condemnation in the court at
Monterey is a nullity, and can have no effect upon the rights of
any party.
As a general rule it is the duty of the captor to bring it within
the jurisdiction of a prize court of the nation to which he belongs
and to institute proceedings to have it condemned. This is re-
quired by the act of Congress in cases of capture of ships of war
of the United States; and this act merely enforces the per-
formance of a duty imposed upon the captor by the law of
nations, which in all civilized countries secures to the captured
a trial in a court of competent jurisdiction before he can finally be
deprived of his property.
But there are cases where, from existing circumstances, the
captor may be excused from this duty, and may sell or otherwise
dispose of the property before condemnation; and where the
commander of a national ship cannot, without weakening incon-
veniently the force under his command, spare a sufficient prize
crew to man the captured vessel, or where the orders of his
government prohibit him from doing so, he may lawfully sell or
otherwise dispose of the captured property in a foreign country,
and may afterwards proceed to adjudication in a court of the
United States.
But if no sufficient cause is shown to justify the sale, and the
conduct of the captor has been unjust and oppressive, the court
may refuse to adjudicate upon the validity of the capture and
award restitution and damages against the captor, although the
seizure as prize was originally lawful or made upon probable
cause. (13 Howard, U. S. Supreme Court Reports, 498.)
Opinions of writers on destruction of prize. — The
opinions of writers upon international law show consider-
able diversity in statement.
Kent says:
Sometimes circumstances will not permit property captured at
sea to be sent into port ; and the captor, in such cases, may either
destroy it or permit the original owner to ransom it. (Abdy's
Kent, International Law, p. 276.)
OPINIONS OF TEXT- WRITERS. 95
Kleen enumerates the generally claimed grounds of de-
struction of seized vessels and comments thereon :
1°. Que le navire soit si delabre, ou marche si mal par suite du
mauvais temps, qu'il ne puisse etre tenu k flot ou remorque; 2°.
Que, devant l'approche d'un vaisseau de guerre ennemi, le navire
puisse etre pris par celui-ci, ou empeche de l'eviter ou de lui
cacher les operations; 3°. Que le capteur manque de l'equipage
necessaire pour amariner le navire; 4°. Que le port soit bloqu£
ou trop eloigne, ou que le navire ait trop peu de valeur pour y
etre mene; 5°. Que le capteur, etant presse, n'ait pas de loisir de
s'occuper du navire.
Aucun de ces pretextes ne soutient un examen serieux. Le fait
qu'un capteur voit dans les evenements naturels, dans des risques
pour lui-meme, dans le manque d'equipage ou dans d'autres incon-
venients pratiques, un obstacle a operer telle saisie, peut bien
constituer pour lui — ainsi qu'il a ete generalement remarque sur-
tout en ce qui concerne des prises neutres — un motif de Vomettre,
mais non pas un motif de commettre une violation du droit d'un
neutre ou un acte de piraterie. La destruction d'une propriety
neutre n'est jamais une " necessite de la guerre," car le bellige-
rant ne se defend pas par cela contre son ennemi. D'ailleurs le
droit de la guerre repose tout entier sur la force comme seul titre
juridique, condition sine qua non. Le croiseur qui ne dispose pas
de la force requise — soit en armement, en equipage, etc. — pour
pouvoir remplir toutes les conditions d'une saisie legale (protec-
tion contre l'ennemi, amarinage, conduite au port, direction, etc.),
n'est plus un capteur competent. Comment un acte remplacant la
saisie pourrait-il etre un titre d'appropriation, alors que la saisie
elle-meme ne Test pas? Le croiseur qui, en pleine mer, detruit de
la propriety privee non encore jugee et dont partant aucune preuve
formelle n'a encore rendu manifeste le cbaractere ennemi ou
coupable, s'arroge les attributions d'un juge, qualite qui ne lui
revient pas.
Sur ces fondements et d'autres semblables, la defense absolue de
dOtruire sur mer des prises neutres est a peu unanime: une telle
destruction est partout qualifiee de criminelle. L' interdiction se
recontre dejH pendant les guerres maritimes de la Revolution
francaise — alors que tant d'autres violations des droits des neu-
tres furent pourtant tolerees — par la regie qu'une destruction
pareille ne peut jamais etre legitimee, tout au plus peut-elle etre
excusee en cas de force majeure, et encore dans ce cas, l'Etat du
capteur doit reparation pleine et enti£re aux 16ses. Depuis lors,
la defense contre ces sortes de destructions est devenue s^vdre.
(2 La Neutralite, p. 531.)
96 TREATMENT OF NEUTRAL MERCHANTMEN.
Lawrence makes a clear distinction between the de-
struction of neutral and the destruction of belligerent
property.
Meanwhile it is necessary to point out that a broad line of dis-
tinction must be drawn between the destruction of enemy prop-
erty and the destruction of neutral property. The former has
changed owners directly the capture is effected, and it matters
little to the enemy subject who has lost it whether it goes to the
bottom of the sea or is divided by public authority among those
who have deprived him of it. But the latter does not belong to
tne captors till a properly constituted court has decided that their
seizure of it was good in international law, and its owners have
a right to insist that an adjudication upon their claim shall pre-
cede any further dealings with it. If this right of theirs is dis-
regarded, a claim for satisfaction and indemnity may be put in
by their government. It is far better for a naval officer to re-
lease a ship or goods as to which he is doubtful than to risk per-
sonal punishment and international complications by destroying
innocent neutral property. Even where what is believed to be
enemy property is concerned, and destruction or .release become
the only possible alternatives, it would perhaps be wise to adopt
the latter unless the hostile nationality of the vessel and owner-
ship of the cargo are too clearly established to admit of mistake.
But the necessity of rapid movement in modern naval warfare,
combined with the fact that neutral ports will in most cases be
closed to prizes, is almost certain to result in an increase of the
practice of destruction, unless the nations will consent to take a
further step forward and prohibit the capture of private property
unless it be contraband of war. (Principles of International Law,
p. 406, §215.)
Pradier-Fodere says, after considering the generally
enumerated grounds for the destruction of enemy private
vessels —
En resume la pratique internationale autorise, a titre excep-
tionel, les capteurs & detruire les navires ennemi qu'ils ont cap-
tures, et la doctrine admet cette destruction dans les cas de
nebessite absolue, dans les circonstances de force majeure, tout
en reconnaissant, avec raison, que l'anneantissement d'un navire
de commerce desarme et consequemment n'opposant aucune
resistance, est un acte qui excite l'horreur. On considere qu'une
pareille pratique est une aggravation des desastres inseparables
des hostilites dirigees contre la propriete privee, mais on la
tolere comme une necessite fatale qui peut s'imposer parfois, et
dont il faut se garder de faire abus. car independaminent de
l'atrocite morale d'un semblable holocauste offert a l'interet des
OPINIONS OF TEXT-WRITERS. 97
amies, ran£antissement de vaisseaux et de cargaisons sur une
vaste echelle serait, au point de vue economique, suivant l'obser-
vation tres juste de de Boeck, un fait deplorable, dont le monde
civilise subirait le contre-coup, et qui fait reculer l'hunianite aux
plus mauvais jours de son histoire, avec la circonstance aggra-
vante que les ruines accurnulees par ce systeme de destruction
depasseraient aujourd'hui tout ce que les temps anciens peuvent
offrir, etant donne le developpement du commerce international
et la puissance et la rapidite dont sont desormais doues les vais-
seaux de guerre. (8 Droit International Public, p. 659, §3185.)
Risley states his opinion as follows:
Where both ship and cargo have a hostile character her de-
struction is not a harsh measure, for the captor only destroys
what would otherwise become his own property. In two wars
destruction has been adopted as a deliberate policy — by the
United States against Great Britain in 1812-1814, and by the
Confederate States in the American civil war. In the latter case
all the Confederate ports were blockaded, and they could not
have sent in prizes if they had wanted to.
But where the cargo, or a portion of it, is neutral property,
destruction can only be justified in exceptional cases, on the
ground of military necessity, if the Declaration of Paris has any
binding value. It is impossible to reconcile a policy of systematic
destruction applied to neutral cargoes with the provision of the
Declaration of Paris protecting neutral goods in enemy ships,
except contraband. (The Law of War, p. 149.)
Sir Robert Phillimore says :
If a neutral ship be destroyed by a captor, either wantonly or
under alleged necessity, in which she herself was not directly
involved, the captor, or his Government, is responsible for the
spoliation. The gravest importance of such an act to the public
service of the captor's own State will not justify its commission.
The neutral is entitled to full restitution in value. (International
Law, III, CCXXXIII.)
Oppenheim, in his recent work, says of the destruction
of neutral prizes :
That as a rule captured neutral vessels may not be sunk, burned,
or otherwise destroyed is as universally recognized as that cap-
tured enemy merchantmen may not as a rule be destroyed. But
whereas, as shown above in §194, the destruction of captured
enemy merchantmen before a verdict is obtained against them is,
in exceptional cases, lawful, it is a moot question whether the
destruction of captured neutral vessels is likewise exceptionally
allowed instead of bringing them before a prize court.
25114—08 7
98 TREATMENT OF NEUTRAL, MERCHANTMEN.
British practice does not, as regards the neutral owner of the
vessel, hold the captor justified in destroying the vessel, however
exceptional the case may be, and however meritorious the de-
struction of the vessel may be from the point of view of the
government of the captor. Tor this reason, should a captor,
for any reason whatever, have destroyed a neutral prize, full
indemnities are to be paid to the owner, although, if brought into
a port of a prize court, condemnation of vessel and cargo would
have been pronounced beyond doubt. The rule is, that a neutral
prize must be abandoned in case it cannot, for auy reason what-
ever, be brought into a port of a prize court. (2 International
Law, 469, sec. 431.)
In Atlay's edition of Wheaton's International Law is
the following opinion :
If the prize -is a neutral ship, no circumstances will justify her
destruction before condemnation. The only proper reparation
to the neutral is to pay him the full value of the property
destroyed. Neutral cargoes are not always equally privileged. In
1870, the Desaix, a French cruiser, captured two German vessels,
the Ludicig and the Vorwaerts, and burnt them on the day of
capture. Part of the cargo of these vessels belonged to neutral
owners (British subjects), and was therefore under the express
protection of the third article of the Declaration of Paris. The
owners claimed compensation for the destruction of their goods,
but the Conseil d'Etat, in a judgment delivered by the President,
of the French Republic, held that though the Declaration of Paris
exempts the goods of a neutral on board an enemy's ship from
confiscation, and entitles the owner to their proceeds in case of
a sale, yet it gives him no claim for damage resulting from the
lawful capture of the ship or from any subsequent and justifiable
proceedings of the captors. As the destruction of the two vessels
was held to have been necessary under the circumstances, no
compensation was awarded to the owners of the neutral cargo.
(P. 507, sec. 359e.)
The destruction of an enemy merchant vessel seized at
sea is doubtless the easiest disposition of such a vessel. It
has been argued that when such a vessel would surely be
condemned by a prize court, it would be lost to the enemy
owner in any case, and its destruction at sea would be no
greater loss to the enemy owner, while the enemy destroy-
ing the vessel would not profit by the action as when the
vessel is taken into port and regularly condemned and
forfeited. It is thus argued that relatively it would be
an advantage to the enemy owner's state that the vessel
RULES OF INSTITUTE OF INTERNATIONAL LAW. 99
certain to be condemned should be destroyed rather than
be forfeited to the capturing state.
In Atlay's edition of Whea ton's International Law it
is stated that —
If the vessel belong to the enemy, and the captor has no means
of retaining, possession of her or of bringing her into port, he is
then justified in destroying her, but it is his duty to preserve her
papers and as much of the cargo as he can secure. The Con-
federate cruisers burnt many of their prizes at sea during the civil
war, as their own ports were all blockaded by the Federal fleets;
and though this was not a proceeding to be approved of, it was
not a violation of international law. (P. 506, sec. 359d.)
In regard to the unqualified and universal obligation
to release a neutral vessel, Profesor Moore raises a ques-
tion. He says:
Let us take, for example, the case of a neutral vessel laden
with arms and munitions of war, which is captured by a cruiser
of one belligerent while approaching a port of the other. Soon
afterwards a superior force of the latter belligerent appears, so
that the only way to prevent the arms and munitions of war from
being conducted to their hostile destination is to burn or sink the
vessel in which they are borne. Is the captor bound under such
circumstances practically to hand over the vessel and cargo to
his enemy? (7 Moore's International Law Digest, p. 523. i
Professor Moore concludes as follows:
The discussion between Great Britain and Russia during the
Russo-Japanese war serves to emphasize the potentially impor-
tant relation of the question of contraband to the question of de-
struction. When publicists have spoken of the presence of " con-
traband " as justifying or excusing the destruction of a neutral
ship that could not be brought in, they have no doubt had in mind
cargoes composed of things specially adapted to use in war and
confessedly contraband, such as arms and ammunition, and can-
not be assumed to have contemplated the subjection of neutral
commerce to general depredation under an extension of the cate-
gories of contraband. (Ibid., p. 527.)
Rules of the Institute of International Law. — After
much discussion in earlier sessions in regard to limiting
destruction to vessels of the enemy, the following regula-
tions were adopted at the Heidelberg meeting of the
Institute of International Law in 1887:
Sec. 50. II sera permis au capteur de bruler ou de couler bas
le navire ennemi saisi, apres avoir fait passer sur le navire de
100 TREATMENT OF NEUTRAL MERCHANTMEN.
guerre les personnes qui se trouvaient & bord et dechargS autant
que possible la cargaison, et apr£s que le coruniandant du navire
capteur aura pris a sa charge les papiers de bord et les objets
iinportants pour renquete judicaire et pour les reclamations des
proprietaires de la cargaison en dommages et intergts dans les
cas suivants.
(1) Lorsqu'il n'est pas possible de tenir le navire a flot, &
cause de son inauvais Stat, la mer £tant houleuse;
(2) Lorsque le navire marcbe si mal qu'il ne peut pas suivre
le navire de guerre et pourrait facilement £tre reprispar l'ennemi;
(3) Lorsque l'approcbe d'une force ennemie sup§rieure fait
craindre la reprise du navire saisi :
(4) Lorsque le navire de guerre ne pent mettre sur le navire
saisi un equipage suffisant sans trop diminuer celui qui est
n£cessaire k sa propre surety ;
(5) Lorsque le port on il sera it possible de conduire le navire
saisi est trop eloignc.
Sec. 51. II sera dresse proces-verbal de la destruction du navire
saisi et des motifs qui Font amenee; se proces-verbal sera trans-
mis a 1'autorite superieure militaire et an tribunal d'instruction
le plus proche, lequel examinera et, au besoin, completera les
actes y relatifs et les transmettra au tribunal des prises. (9
Annuaire de l'lnstitut de Droit International, 228.)
Usual procedure. — It is not easy to determine from a
superficial examination such as is usually made by a vis-
iting war vessel that destruction of an enemy merchant
vessel would not involve serious complications in conse-
quence of the presence of neutral goods on board which
are regarded as exempt from capture even under an
enemy flag.
The general principle followed by states is to regard
the status of a seized vessel as in abeyance till determined
by the court.
The right of search is preliminary to the right of seizure, and
the right of seizure depends upon the result of the exercise of the
right of search. * * * Even though there may be a legal
seizure, it is the duty of the seizing vessel to follow such seizure
by affording to the captured party all facilities of defense to
which he may be entitled. (The Nancy, 37 U. S. Court of
Claims, 401.)
In general any action toward a captured vessel in the
way of appropriation or destruction of cargo must await
condemnation by the court.
OBJECTIONS TO DESTRUCTION. 101
Destruction deprives the neutral of much evidence
which he might otherwise show in support of the inno-
cence of the destroyed property.
Practical objections to destruction. — There are certain
practical considerations which at the present time make
the destruction of enemy prize a serious question. Some
of the considerations were mentioned in the Naval War
College Discussions in 1905. Such possibilities as the
following were mentioned as making destruction a doubt-
ful proceeding: The possibility of error in the decision
of a " quarter-deck court." the liabilities under the pro-
vision of the Declaration of Paris exempting neutral
goods except contraband from capture, and the fact that
unwarranted destruction of any neutral property entails
not merely restitution of value but also damages. Cer-
tain practical difficulties also arise, as was said in 1905:
The generally enunciated rule in regard to destruction of an
enemy's vessel is, " an enemy's ship can be destroyed only after
her crew has been placed in safety.'' If this is to be strictly
interpreted, there would be considerable doubt as to whether the
deck of a war vessel, whose commander fears that his prize is in
imminent danger of recapture because of the approach of his
enemy, would be a " place of safety." It is held that the property
and persons of belligerents are subject to the hazard of war
when coming within the field of operations. It would scarcely
follow that such persons should be forced to assume such hazards,
particularly when it is a matter of doubt before adjudication
by the court whether the vessel is a proper subject for seizure.
What is true of the belligerent vessel is even more emphatically
true of a neutral vessel.
* =f= * * # ■.- ■'.'•
Many arguments may be urged against the destruction of
neutral vessels. Before destruction in any case, the crew, pas-
sengers, and papers must be taken from the neutral vessel on
board the belligerent ship. These are then immediately sub-
jected to all the dangers of war to which a war vessel of a
belligerent is subjected. Such a position may be an undue hard-
ship for those who have not been engaged in the war and one
to which they should not be exposed.
A belligerent vessel, with crew, passengers, and papers of the
destroyed neutral vessel, may enter a neutral port to which en-
trance with the vessel itself would be forbidden. This is in
effect almost an evasion of the general prohibition in regard to
the entrance of prize, because on board the belligerent vessel is
102 TREATMENT OF NEUTRAL MERCHANTMEN.
the evidence upon which the decision of the prize court of the
belligerent will be rendered. It is certain that a neutral state
would be very reluctant to admit within its territory a belligerent
vessel having on board the crew and papers of one of its own
private vessels which the belligerent had destroyed. The bel-
ligerent vessel might thus obtain the supplies from the neutral
which would enable it to carry to its prize court the evidence
in regard to capture.
It does not seem possible in view of precedent and practice
to deny the right of a belligerent to destroy his enemy's vessel
in case of necessity. Of course if the doctrine of exemption of
private property at sea is generally adopted this right can no
longer be sustained. The destruction of neutral vessels not in-
volved in the service of the belligerent is sanctioned neither by
precedent nor practice. (International Law Topics, Naval War
College, 1905, pp. 73-75.)
Opinion of the British Commission. — The questions of
capture, sending in, and destruction of private vessels
was quite fully considered in the Report of the British
Royal Commission on the Supply of Food and Raw Ma-
terial in Time of War :
106. The only point in this connection vyhich seems to demand
special examination is whether the practice ordinarily followed,
and generally prescribed, of " sending in " a prize with a view to
inquiry into her character and that of her cargo by a prize court
is, in every case, internationally obligatory. If so, the rule must
obviously limit the number of prizes which any one cruiser can
capture, to any purpose. The smaller the cruiser the less will
she be able to provide the prize crews necessary for " taking in "
any large number of prizes. For this and other reasons it has
not unfrequently happened that captors have sunk or burned their
prizes after a necessarily perfunctory inquiry into their nation-
ality and trade.
107. With reference to ships and cargoes unquestionably be-
longing to the country of the captor or of the enemy, no question
of international duty can arise, and a belligerent is entitled to
give its cruisers such instructions as regards the disposal of such
ships and cargoes as it may think fit. It is for the protection of
"innocent" neutral property that international law insists upon
opportunity being given for judicial examination into the facts
of any capture in which such property may be involved. " Send-
ing in " is, in such a case, internationally obligatory, when it is
reasonably possible; and should the retention of the prize by the
captor imperil his own safety, or be incompatible with the opera-
tions in which he is engaged, his proper course would seem to be
to release her (although some national instructions may be quoted
OPINIONS OF BRITISH COMMISSION. 103
to the contrary), taking from her a ransom bond, if he is allowed
to do so by the regulations of his own Government.
108. The organization of modern war ships would appear to
place new difficulties in the way of either " sending in " or de-
stroying prizes on a large scale. Such ships, it is said, could
spare but few of their men, trained, as they are, for highly spe-
cialized departments of labor, to act as prize crews; nor could
they find room on board for the crews which it would be necessary
to remove from prizes before proceeding to sink them.
146. Again, engines and machinery have reduced the space
available for the personnel of warships as compared with that
available in the days of sailing ships. A modern warship could
only to a very limited extent furnish prize crews, and she would
impair her fighting and steaming capacity by so doing. To some
extent she could also accommodate crews of captured merchant-
men or could carry a limited number of supernumeraries (if such
surplus personnel of trained officers and men should be available)
for the purpose of providing prize crews. It follows, therefore,
that after a very few captures a warship will be face to face with
the dilemma that she must either sink a fresh prize or must take
it into port; and if the former alternative is adopted, she must
take the crew on board and, owing to the inconvenience which
their presence would cause, land them at the earliest opportunity.
In either case the warship ceases to be a free operator against
commerce. Hence modern conditions tend to limit the capturing
power of regular war cruisers. These observations do not, how-
ever, apply to ocean trading steamers converted and armed for
the purpose of attacking commerce.
It should be added that torpedo-craft (i. e., destroyers and tor-
pedo boats) can neither spare prize crews nor accommodate any-
one above their complement numbers. If, therefore, they are em-
ployed against commerce, for which they were never intended,
such craft could only compel merchant ships to follow them into
port under threat of being torpedoed. Moreover, these craft can
only operate within a comparatively short distance of their shore
basis. (Vol. I, pp. 25 and 34, §§ 106-108, 146.)
The following questions by Sir John Colomb and re-
plies by Professor Holland also appear in the minutes of
the British Royal Commission on the Supply of Food
and Raw Material in Time of War, 1905 :
6833. In your paper you refer to the limitation put by inter-
national law upon the number of prizes taken, by the necessity
of furnishing prize crews, and of taking prizes into port? — In
the memorandum I discuss the question whether there is a
limitation and how far it applies.
104 TREATMENT OF NEUTRAL MERCHANTMEN.
6834. Generally there is a limitation? — There is for the pro-
tection of neutral property, but for no other purpose. There is
the chance that neutral property is involved ; if it were not for
that, it would not be necessary at all.
6835. Then, as regards the destruction of prizes, what about
the crews on board those ships? — They must take out the crews,
and they may take out the cargoes if they have time to do so.
6836. It is against international law, then, to sink them without
taking out the crews? — Yes.
6837. Therefore, that is another limitation to the power of a
man-of-war making seizures and destroying vessels, because it
crowds the ship?— Yes. and it takes time to transfer, too.
6838. Therefore, there are two limitations put by international
law : One is the necessity of furnishing a prize crew to bring
the prize into court, and the other is that if they resolve to
destroy her they must crowd their ship with hor crew? — Yes.
There is no necessity where she is clearly enemy property to
spare her; that is only the case where neutral property is
involved.
6839. But there is an equal obligation to save the crew, is
there not? — Certainly, always.
6840. Therefore, in either case that particular limitation ap-
plies? — Always. I may say that the criticism of the Admiralty
on the navy maneuvers in 1888, which I think I mentioned just
now, was, that when they pretended to take so many prizes in
such a short time, they did not allow themselves time in which
to transfer the crews and, therefore, must be taken to have sunk
them.
Treaty provisions in regard to contraband cargo. — In
an early treaty of the United States with Sweden and
Norway, 1783, it is provided in regard to the seizure of
neutral vessels with contraband —
And in case the contraband merchandize be only a part of the
cargo and the master of the vessel agrees, consents & offers to
deliver them to the vessel that has discovered them, in that case
the latter, after receiving the merchandizes which are good prize,
shall immediately let the vessel go & shall not by any means
hinder her from pursuing her voyage to the place of her destina-
tion. (Art. 13.)
Article XIII of the treaty with Prussia in 1799, which
is still in effect, gives very liberal treatment.
And in the same case of one of the Contracting Parties being
engaged in War with any other Power, to prevent all the difficul-
ties and misunderstandings that usually arise respecting iuer-
TREATY PROVISIONS AS TO CONTRABAND. 105
chandise of contraband, such as arms, ammunition, and military
stores of every kind, no such articles, carried in the vessels, or
by the subjects or citizens of either Party, shall be deemed con-
traband so as to induce confiscation or condemnation and loss of
property to individuals. Nevertheless it shall be lawful to stop
such vessels and articles and detain them for such length of time
as the captors think necessary to prevent the inconvenience or
damage that might ensue from their proceeding, paying however
a reasonable compensation for the loss such arrest shall occasion
to the proprietors, and it shall further be allowed to use in the
service of the captors, the whole or any part of the military
stores so detained, paying the owners the full value of the same,
to be ascertained by the current price at the place of its destina-
tion. But in the case supposed of a vessel stopped for articles of
contraband, if the master of the vessel stopped will deliver out
the goods supposed to be of contraband nature, he shall be ad-
mitted to do it, and the vessel shall not in that' case be carried
into any port, nor further detained, but shall be allowed to pro-
ceed on her voyage.
In the treaty between the United States and Bolivia,
1858, is the following:
Article 19. The articles of contraband before enumerated and
classified, which may be found in a vessel bound to an enemy's
port, shall be subject to detention and confiscation, leaving free
the rest of the cargo and the ship, that the owners of them may
dispose of them as they see proper. No vessel of either of the
two nations shall be detained on the high seas on account of
having on board articles of contraband, whenever the master,
captain, or super-cargo of said vessel will deliver up the articles
of contraband to the captor, unless the quantity of such articles
be so great, or of so large a bulk, that they cannot be received
on board the capturing ship without great inconvenience; but in
this, as well as in other cases of just detention, the vessel de-
tained shall be sent to the nearest convenient port for trial and
judgment according to law.
Article 18 of the Brazilian treaty of 1828 is practically
the same, as is article 19 of the Colombian (New Grenada)
treaty of 1846.
In article 23 of the treaty with Haiti of 1864 it is pro-
vided that —
If it shall appear from the certificates that there are contra-
band goods on board any such vessel, and the commander of the
same shall offer to deliver them up, that offer shall be accepted,
and a receipt for the same shall be given, and the vessel shall be
106 TREATMENT OF NEUTRAL MERCHANTMEN.
at liberty to pursue her voyage unless the quantity of contra-
band goods be greater than can be conveniently received on board
the ship of war or privateer, in which case, as in other cases of
just detention, the vessel shall be carried to the nearest safe and
convenient port for the delivery of the same.
Article XX of the treaty between the United States
and Italy, February 26, 1871, states that —
In order effectually to provide for the security of the citizens
and subjects of the contracting parties, it is agreed between them
that all commanders of ships of war of each party, respectively,
shall be strictly enjoined to forbear from doing any damage to,
or committing aDy outrage against, citizens or subjects of the "
other, or against their vessels or property; and if said com-
manders shall act contrary to this stipulation, they shall be
severely punished, and made answerable in their persons and
estates for the satisfaction and reparation of said damages, of
whatever nature they may be.
Resume. — From the opinions, precedents, rules, treaties,
etc., thus far stated it is evident that the treatment of
neutral vessels in the time of war is not yet a fully settled
question.
Situation V relates to one aspect of this question.
Situation V relates to the treatment of neutral vessels
loaded for the most part with contraband overtaken by
war vessels of the United States on the high seas when
bound for a fortified port of State X when there is war
between the United States and State X.
The vessels are in each case carrying contraband to the
enemy of the United States, and in each the cargo is for
the most part contraband.
These facts, however, do not change the status of the
vessel unless the cargo and vessel belong to the same
owner, in which case both vessel and cargo might be sub-
ject to like penalty; otherwise, unless the vessel were
guilty of some other offense, the cargo only would be liable
to penalty and the owner of the vessel wquld suffer
sufficiently in the loss of freight and the delay caused by
the capture and prize proceedings.
Considering these questions first upon the basis that the
ship and cargo belong to different owners and that it is
a simple act of commerce, it may be said that in each case
RESUME. 107
the penalty in general would be the loss of cargo for the
owner of the contraband and the loss of freight for the
owner of the vessel.
How would the fact that the commanding officer of the
force overtaking the vessel bound with contraband for a
fortified port of the enemy found the vessel carrying the
contraband unseaworthy and not able to stand a voyage
to a port where a prize court of the United States could
sit affect the case?
If it were an enemy vessel he might as a military neces-
sity sink the vessel and cargo after removing papers and
crew and making proper survey, but no such penalty is
prescribed for carriage of contraband by a neutral vessel.
The commander under some treaties would be justified in
removing the contraband from the vessel. This, in view
of the circumstances, would be the best course if his ship
could accommodate such a burden. He would also as a
military necessity be justified in destroying the contra-
band if it was not possible to take it on board. In all
cases he should bring in the papers relating to the cargo
and observe the other naval regulations relating to such
seizure. The vessel should be dismissed. Its penalty will
be loss of freight.
If contraband cargo and vessel belong to the same
owner both are liable to condemnation if sent to a prize
court. It would, however, be exceedingly dangerous to
allow officers occupied with the duties of war to pass
judgment upon the relative cost of sending vessels to
prize court as compared with the probable value of ves-
sel and cargo, little of which could be examined in
most cases. It would also impose a very serious burden
upon the naval officer which he probably would not care
to assume, particularly if the field of operations was
remote from a prize court. The only safe course is to
take on board or, in case of necessity, to destroy the con-
traband, retaining all necessary papers.
If, as he overtakes the neutral merchantman, the com-
manding officer discovers that he is in danger of imme-
diate attack by the enemy, he should dismiss the mer-
108 TREATMENT OF NEUTRAL MERCHANTMEN.
chantman unless he can spare a prize crew to send her in.
He would under no circumstances be justified in compel-
ling a neutral, engaged in commerce for which there is a
fixed penalty, to run additional risks of war by accom-
panying his fleet. Nor would he be justified in taking upon
his own vessel, about to be attacked, the crew and perhaps
the passengers of the neutral vessel in order that he might
sink the vessel. The conditions are such that he is not in
a position to inflict the legitimate penalty on the vessel
because of his own danger. He would not on this account
be warranted in inflicting a greater penalty and in sub-
jecting neutral persons to the hazards of war.
When the personnel of his fleet is so reduced that he
cannot spare a crew to take the vessel in, he should dis-
miss the vessel, though he, in accordance with the treaties
with certain states, may take or destroy the cargo, retain-
ing the proper papers.
Conclusion. — (a) If the contraband cargo and the
seized neutral vessel have different owners, the contraband
cargo, after proper survey, appraisal, and inventory, and
with consent of the master, if in accordance with treaty
provisions, may be taken, and the vessel, if guilty only of
the carriage of contraband, should be dismissed, and the
papers relating to the whole transaction should be for-
warded to the prize court.
(b)If the master does not consent, the vessel and cargo
are liable to the usual penalties for contraband trade.
(c)If the neutral vessel and contraband cargo belong
to the same owner, the contraband cargo may be treated
as in (a). The vessel, however, should if possible be
sent to a prize court for adjudication, otherwise the vesseJ
should be dismissed.
(d) Destruction, on account of military necessity, of
a neutral vessel guilty only of the carriage of contraband
entitles the owner to fullest compensation. Before de-
struction all persons and papers should be placed in
safety.
Situation VI.
Three neutral merchant vessels are successively over-
taken on the high seas by a war vessel of the United
States when there is a war between the United States and
State X.
(a) The first is found to have been guilty of a breach
of blockade established by the United States at a port of
State X and maintained with reasonably efficiency.
(b) A second neutral merchant vessel is found to have
been carrying contraband to an unblockaded port of State
X and is on the return voyage to its home port with the
goods received in exchange for the contraband.
(c) The third neutral merchant vessel is a collier re-
turning to its home port after accompanying the fleet of
State X with a cargo of coal.
What, if any, action should the commander of the
United States war vessel take in each case?
SOLUTION.
(a) The commander of the United States war vessel,
unless certain that the neutral vessel breaking the block-
ade is exempt from seizure, should send the neutral
vessel to the nearest prize court.
(b) The neutral merchant vessel on her return voyage
is not liable to seizure because of carriage of contraband
on the outward voyage and should not be detained for
such cause.
(c) If a war vessel of the United States overtakes a
neutral vessel which has accompanied the enemy fleet
as a collier before the neutral vessel has completed her
voyage by return to the port of departure or to a home
port, the commander of the United States war vessel
should not hesitate to seize the collier and send it with
its crew to a prize court, or, if necessary, to treat it imme-
diately as an enemy vessel might be treated under similar
conditions.
109
110 VIOLATION OF BLOCKADE, ETC.
NOTES ON SITUATION VI.
Reasons for Situation VI. — (a) Some recent discus-
sions and opinions have raised questions as to what might
be considered an effective blockade.
(b) The action of the prize court at Vladivostok in
the case of the Allanton has raised questions as to the
liability of vessels on the return voyage for carrying con-
traband on the outward voyage.
(c) The present necessity for collier service has given
rise to the question of the liability of a neutral vessel en-
gaged in this service in time of war.
Provision of the Declaration of Paris, 1856. — By the
Declaration of Paris, 1856, to which the United States
did not accede, but to the principles of which it has in
practice adhered —
Blockades, in order to be binding, must be effective — that is to
say, maintained by a force sufficient really to prevent access to
the coast of the enemy.
It is evident that even those states which acceded to
this Declaration of Paris cannot interpret literally the
last clause, " sufficient really to prevent access to the coast
of the enemy." Probably no blockade could be main-
tained in this manner for any considerable length of
time. During the night a fast vessel might pass in, or
in a fog a vessel well acquainted with the locality might
pass through, and in these days of submarines it may not
be possible to guard against the passing of such a vessel.
That it is not expected that the access to the coast will
really be prevented is seen in the provisions for penalties
for the breach of blockade. No penalties would be nec-
essary under a literal interpretation of the declaration,
for the access of vessels would be prevented, and if a
vessel obtained access the blockade would not be effective,
and hence the vessel would not be liable to penalty. This
clause has been given a sane interpretation as meaning
that the access of a vessel to the coast or her egress to the
sea would be with evident danger. Such a blockade
would be regarded as reasonably effective, and it is such
a blockade that Situation VI considers.
POSITION OF UNITED STATES. Ill
To break such a blockade a neutral merchant vessel
must resort to unusual means or efforts. If a vessel does
this it would ordinarily imply the taking of an unusual
risk for the hope of an unusual reward which would ac-
crue in consequence of some special advantage gained by
the blockaded belligerent. Penalty, therefore, would
justly be inflicted by the other belligerent if possible in
order to prevent aid to the blockaded belligerent.
A neutral merchant vessel may, however, approach a
port that has been blockaded and find that there are no
belligerent vessels before the port. It may pass in. #
Admitting that these belligerent vessels have been
scattered by a storm and that the neutral vessel passes
out of the port just as the blockading vessels return to
their stations, would it be held that the neutral vessel
had violated an effective blockade? The general con-
sensus is that the temporary scattering of vessels before
a blockaded port by a storm does not break the blockade.
The interpretation of the word " temporary " is still open
to question. What should be considered a " temporary
suspension?" Blumerincq proposes twenty-four hours'
absence as the limit of " temporary suspension." Others
attempt to fix a limit of distance, the character of the
storm, etc., as factors in determining suspension. It is
difficult to reconcile the doctrine of " temporary suspen-
sion " with the principles of the Declaration of Paris.
Position of the United States. — The United States
recognizes the necessity of observing the rules of Inter-
national law in maintaining a blockade, and in General
Order No. 492 of the Navy Department, June 20, 1898,
gives quite full statement for the guidance of blockading
vessels and cruisers:
Instructions to Blockading Vessels and Cruisers.
1. Vessels of the United States, while engaged in blockading and
cruising service, will be governed by the rules of international law,
as laid down in the decisions of the courts and in the treaties
and manuals furnished by the Naval Department to ships' libra-
ries, and by the provisions of the treaties between the United
States and other powers.
The following specific instructions are established for the
guidance of officers of the United States :
112 VIOLATION (>F BLOCKADE, ETC.
BLOCKADE.
_'. A blockade to be effective and binding must be maintained
by a force sufficient to render ingress to or egress from the port
dangerous. If the blockading vessels be driven away by stress of
the weather, but return without delay to their stations, the con-
tinuity of the blockade is not thereby broken; but if they leave
their stations voluntarily, except for purposes of the blockade,
such as chasing a blockade runner, or are driven away by the
enemy's force, the blockade is abandoned or broken. As the sus-
pension of a blockade is a serious matter, involving a new notifica-
tion, commanding officers will exercise especial care not to give
grounds for complaints on this score.
NOTIFICATIONS TO NEUTRALS.
3. Neutral vessels are entitled to notification of a blockade be-
fore they can be made prize for its attempted violation. The
character of this notification is not material. It may be actual,
as by a vessel of the blockading force, or constructive, as by a
proclamation of the government maintaining the blockade, or by
common notoriety. If a neutral vessel can be shown to have had
notice of the blockade in any way, she is good prize and should be
sent in for adjudication : but, should formal notice not have been
given, the rule of constructive knowledge arising from notoriety
should be construed in a manner liberal to the neutral.
4. Vessels appearing before a blockaded port, having sailed
without notification, are entitled to actual notice by a blockading
vessel. They should be boarded by an officer, who should enter
in the ship's log the fact of such notice, such entry to include the
name of the blockading vessel giving notice, the extent of the
blockade, the date and place, verified by his official signature.
The vessel is- then to be set free; and should she again attempt to
enter the same or any other blockaded port as to which she has
had notice she is good prize.
5. Should it appear from a vessel's clearance that she sailed
after notice of blockade had been communicated to the country
of her port of departure, or after the fact of blockade had, by a
fair assumption, become commonly known at that port, she should
be sent in as a prize. There are, however, treaty exceptions to
this rule, and these exceptions should be strictly observed.
6. A neutral vessel may sail in good faith for a blockaded port
with an alternative destination to be decided upon by information
as to the continuance of the blockade obtained at an intermedi-
ate port. But, in such case, she is not allowed to continue her
voyage to the blockaded port in alleged quest of information as to
the status of the blockade, but must obtain it and decide upon
her course before she arrives in suspicious vicinity; and if the
POSITION OF UNITED STATES. 113
blockade has been formally established with due notification, any
doubt as to the good faith of such a proceeding should go against
the neutral and subject her to seizure.
7. In accordance with the rule adopted by the United States in
the existing war with Spain, neutral vessels found in port at the
time of the establishment of a blockade will, unless otherwise
ordered by the United States, be allowed thirty days from the
establishment of the blockade to load their cargoes and depart
from such port.
8. A vessel under any circumstances resisting visit, destroying
her papers, presenting fraudulent papers, or attempting to escape,
should be sent in for adjudication. The liability of a blockade
runner to capture and condemnation begins and terminates with
her voyage. If there is good evidence that she sailed with intent
to evade the blockade, she is good prize from the moment she
appears on the high seas. Similarly, if she has succeeded in es-
caping from a blockaded port she is liable to capture at any time
before she reaches her home port. But with the termination of
the voyage the offense ends.
9. The crews of blockade runners are not enemies and should
be treated not as prisoners of war, but with every consideration.
Any of the officers or crew, however, whose testimony before the
prize court may be desired, should be detained as witnesses.
10. The men-of-war of neutral powers should, as a matter of
courtesy, be allowed free passage to and from a blockaded port.
11. Blockade running is a distinct offense, and subjects the ves-
sel attempting, or sailing with the intent, to commit it, to seizure,
without regard to the nature of her cargo. The presence of con-
traband of war in the cargo becomes a distinct cause of seizure
of the vessel, where she is bouud to a port of the enemy not block-
aded, and to which, contraband of war excepted, she is free to
trade.
From these instructions it may be seen that dispersion
from stress of weather is not held to interrupt the con-
tinuity of the blockade, though no definite time of
absence or other limiting specification is indicated.
Voluntary departure, except for chase of a blockade run-
ner, is held to break the blockade, as is flight before an
enemy.
There are numerous conditions under which a neutral
vessel may pass through or approach a blockade without
guilt. These are mentioned in the clauses under " Notifi-
cations to neutrals."
25114—08 8
114 VIOLATION OF BLOCKADE, ETC.
Opinion of Pradier-Fodere. — The general principle is,
" if a vessel has succeeded in escaping from a blockaded
port she is liable to capture before she reaches her home
port. But with the termination of the voyage the
offense ends."
Pradier-Fodere well says:
II se peut que du temps de Grotius la notion de la violation
ait ete inoins £tendue qu'elle ne Test aujourd'hui ; qu'avant
Bynkershoeck Fen tree seule dans les ports bloques ait ete con-
sidered conirue illicite, tandis que de nos jours on regarde comme
telles l'entree et la sortie, suivant les cas, etc. ; ce qu'il y a de
certain, c'est qu'il n'y a pas de inatiere ou le pele-ruele des
theories et des pratiques contraires soit plus inextricable et
fasse de cette question un objet d'etude plus indigeste: les
gouverneruents restreignant dans des proportions justes, ou
elargissant outre mesure, la notion du fait delictueux, suivant
qu'ils sont disposes a £pargner ou a atteindre le plus possible le
navigation §trangere; la doctrine soutenant trop souvent avec
docilite, dans chaque pays, les vues de son gouvernement, ou
s'eniancipant et se perdant dans le labyrinthe de ses distinctions
subtiles et des systemes; enfin les conseils et tribuneaux de prise
posant dans leurs decisions des principes, tantot tres larges,
tantot tres rigoureux. Pour eviter de se perdre dans ce melange
obscur d'opinions et d'applications diverses, il est necessaire de
se laisser plus que jamais guider par les lumidres du sens
commun, et de rechercher, non ce qui est (c'est a dire & peu
pr&s le chaos), mais ce qui doit etre. Or, le bon sens se joignant
aux principes les plus 61§mentaires du droit, il s'agisse d'un
blocus rggulier; qu'il n'y ait eu un acte materiel constituant soit
une violation, soit une tentative de violation; que le navire neutre
arrets comme violateur ait eu connaissance du blocus; que
l'existence du blocus ait ete portee a. sa connaissance, sur la ligne
me'me de Vinvcstissement ; que le navire neutre ait ete surpris
en flagrant del.it. Telles sont les conditions essentielles princi-
pales de al violation des blocus, conformes a la raison, a 1'equite"
et aux vrais principes du droit ; tout ce qui est en dehors d'elles
est irrationel, arbitraire et inique. (8 Droit international pub-
lic, p. 391, §3139.)
(a) Conclusion as to the blockade. — In Situation VI
(a), a neutral merchant vessel is overtaken in time of war
by a war vessel of the United States and is found to have
been guilty of a breach of blockade established and main-
tained with reasonable efficiency by the United States.
The war vessel in such case would of course onlv take
CONTRABAND TRADE. 115
action against the neutral vessel if overtaken on the high
seas or within belligerent jurisdiction and before return
to her home port. The commander of the war vessel
would further be bound to act under orders such as are
shown in General Order No. 492. He would be bound
also by international law, by treaties, etc. When in doubt
in regard to any of these points, the safe course is to send
the vessel in for adjudication by the prize court.
The conclusion in this case would therefore be that the
commander of the United States war vessel, unless cer-
tain the neutral vessel breaking the blockade was exempt
from seizure, should send the neutral vessel to the nearest
prize court.
Contraband trade. — In concluding his discussion on the
sale of contraband, Professor Moore says:
The fundamental principles are simply these: From the point
of view of neutrality the question of unlawfulness is presented in
two aspects, (1) that of international law and (2) that of munic-
ipal law. Offenses under (1), i. e., acts unlawful by interna-
tional law, are divided into two classes, (a) acts which the state
is bound to prevent and (&) acts which the state is not bound to
prevent, and which therefore are not usually offenses against
municipal law. The dealing in contraband belongs under (1) (&),
for it is (1) unlawful by international law, as is shown by the fact
that the noxious articles may be seized on the high seas and
confiscated; but (&) it is not an act which it is the duty of the
neutral state to prevent, and therefore is not usually prohibited by
municipal law.
Why is the neutral state not bound to prevent it? Simply be-
cause, from obvious considerations of convenience, it has been
deemed just to confine within reasonable bounds the duty of the
neutral state to interfere with the commerce of its citizens, even
for the purpose of repressing unneutral acts. The principal in-
terest to be subserved being that of the belligerents, it is left to
them, in respect of many acts in their nature unneutral, to adopt
measures of self -protection ; and neutral states are deemed to have
discharged their full duty when they submit to the belligerent en-
forcement of such measures against their citizens and their com-
merce. (7 Digest of International Law, p. 972.)
Vladivostok court on the Allanton. — The decision of
the Vladivostok prize court in the case of the Allanton
states that the visiting party from the Russian war vessel
found the Allanton a British steamer —
116 VIOLATION OF BLOCKADE, ETC.
with a cargo of 6,500 tons Japanese coal. Besides the captain,
Henry Motger, and the crew, consisting of 30 men of different
nationalities, was a young Japanese who declared he had em-
barked in Mororan for the purpose of going to America, which
statement was confirmed by the captain. Examination of the
ship's documents showed that the AUanton was going to Singa-
pore with coal from Mororan; nevertheless the officer requested
the captain to take all documents and accompany him on board
the cruiser for the purpose of giving more exact information.
To this the captain demurred, but sent on board his mate, Henry
Mitchell, with the documents. At the second examination of the
documents it turned out that the official log book and the chief
officer's log book were missing, and these were immediately
ordered to be sent for examination. The official log book was
not in order, being kept up only until May 2/15, 1904. According
to remarks in chief officer's log and also other documents it be-
came evident that in May the AUanton brought to Sasebo a full
cargo of Cardiff coal. After having discharged this contraband
in Sasebo, the steamer went to Mororan, where she took a new
cargo of Japanese coal according to documents destined for
Singapore and addressed to Messrs. Patterson, Simon & Co. The
admiral being doubtful as to the genuineness of the steamer's
destination, gave orders to have her taken to Vladivostok. On
June 6/19 steamer arrived in Vladivostok under command of
Lieutenant Petroff, and the case was given to the prize court
for trial. At trial captain stated that steamer was registered
at Glasgow, owned by W. Rea, resident in Belfast. On February
8/21, she left Cardiff with coal bound for Hongkong, by way of
Cape of Good Hope. Upon her arrival at Hongkong the captain
received orders to proceed to Sasebo with cargo. Having dis-
charged her cargo there, she proceeded to Mororan, where new
cargo of coal was taken for Singapore. On her way to this port she
was detained by the Russian cruisers in the Japanese Sea.
The Japanese, Tatiki Miachara, declared that he embarked on
the AUanton in Mororan intending to go to America for the pur-
pose of completing his education, but neither a passport nor any
other document to prove his identity were in his possession.
*******
Having taken into consideration all circumstances of the case
referred to, the court decided:
" 1. That the S. S. AUanton was arrested correctly, under ob-
servance of the rules in paragraphs 2, 3, 15, and 17 of the stat-
utes of Maritime Prizes, and on the basis of fully satisfactory
reasons justifying the steps taken. Such reasons are:
"(a) The irregularity of the ship's log.
CASE OF THE ALLANTON. 117
"(&) Indisputable proof of the ship having delivered recently
at a Japanese port a full cargo of contraband of war with full
knowledge and sanction of owner.
"(c) The chartering of the steamer by a Japanese trading com-
pany and the fact that she was loaded exclusively with coal,
being contraband of war, in case the real destination was not
Singapore but a hostile port or squadron."
Proceeding to consider the question of the owner's standpoint
with regard to the obligations of neutrality, the court found
that—
" 2. The owner ' took active measures that the cargo should
not be exposed to detention on its way to Japan.' "
With regard to the second trip, during which the Allanton was
arrested by the Russian cruisers in the Japanese Sea, this time
the court also turned its attention to the following important cir-
cumstances :
" (a) The course the steamer kept on her way to Mororan
passed through the whole theater of present war * * * which
could be very easily avoided by taking the way through the ocean,
so much the more as the last-mentioned way to Singapore, if this
were the destination, would have been only a trifle longer, about
100-120 miles.
"(1)) The statement given by the young Japanese, Tatiki Mia-
chara, embarked in the Allanton at Mororan for the purpose of
going to America to finish his education, is apparently invented,
as Miachara had no document whatever in his possession to prove
his identity, whereas, taking into consideration the utterly strict
passport rules in Japan and with regard to Asiatics in America,
it appears impossible for a Japanese subject, not having served
his time in the army, and not having in his possession a certifi-
cate stating his being released from the same, to leave Japan
without permission from the local authorities and without a
passport in his possession.
"(c) The discontinuance of remarks of arrivals at ports in the
official log, from the moment the ship left Hongkong, and further
the fact that even after the first illegal trip was finished no such
remarks have been made, seem to prove that on the second trip
Singapore was no more the destination of the Allanton than
Hongkong was on the first.
" 3. Concerning the cargo the Allanton carried when arrested,
the fact that the steamer was chartered directly by the Japanese
company for taking a full cargo of coal from Mororan and the
nonexistence of any statement whatever showing that the coal
had become the property of a neutral proves that the cargo in
question was still the property of the Japanese company; conse-
quently, being hostile property, accompanied by the Japanese,
Miachara, presumably in the capacity of agent.
118 VIOLATION OF BLOCKADE, ETC.
"A combination of all details and circumstances mentioned
above and the character of the cargo convinces the court that
the real destination of this hostile cargo was by no means Singa-
pore, but a Japanese or Corean port, or even the enemy's fleet
maneuvering in the open sea, on account of which the cargo in
question was declared by the court to be contraband of war in
accordance with paragraph 6, clause 8 of H. I. M. order of Feb-
ruary 14, 1904.
" The court considers it proved that illegal actions have been
exercised by the owner of the ship and captain of the same for
the strengthening of the enemy's military store by bringing him
coal, necessary for carrying on naval warfare, and that the
steamer Allanton has thereby forfeited the rights of neutrality.
" Considering the circumstances in this case in connection with
state of affairs in the theater of war, the court finds — even in-
dependent of the proved fact that the Allanton was about to bring
contraband of war to the enemy — that the facts referred to are
so much the more important, as ships of neutrals serving in the
place of the Japanese merchant service, and thus enabling the
Japanese Government to utilize the latter for furtherance of war
operations, exercise a great influence on the results of the war,
disadvantageous to Russia, not speaking of the fact that such
actions on the part of neutrals, being left unpunished, would make
it almost impossible for Russia to follow up one of the most
important and natural objects in naval war — to cut off tbe enemy
from the possibility of availing himself of the sea as a means of
communication."
* * * * * *
The prize court considered the Allanton, as well as her cargo,
fully legal prize, and accordingly decided to confiscate the same
iu favor of the Imperial Government.
»
Opinions of the case. — Smith and Sibley, reviewing the
case of the Allanton. say :
The Allanton, as appears from the argument of M. Sheftel,
could not, on any fair construction, be considered as engaged
in a contraband transaction, either when proceeding to Mororan
or when leaving that port. M. Sheftel proceeded to observe that
the majority of the authorities on international law held that
a vessel which succeeded in conveying contraband to a hostile
port and was captured, not while engaged in doing so, but subse-
quently on the return voyage, could not be held liable to con-
fiscation. Such was the principle enunciated by Prof. Franz
Despagnet, Prof. Franz von Liszt, and Prof, de Martens. Prof,
de Martens, in his work, " International Law among Civilized
Nations," positively asserted that " In order that the seizure of
a neutral vessel for conveying contraband should be lawful, it
CASE OF THE ALLANTON. 119
is necessary that the neutral vessel in question should be caught
in flagrante delicto. Capture subsequent to the discharge of
the unlawful cargo is not. justifiable in law." In an even more
striking sentence M. Sheftel observed that, according to Russian
naval regulations in force, it was not permissible to seize a
vessel for conveying contraband after she had discharged her
cargo at the hostile port. The Russian regulations of March
27, 1900, regarding maritime prizes, declared : " Mercantile ves-
sels of neutral nations are liable to be confiscated as prizes when
captured in the act of conveying contraband to the enemy or
to an enemy port." This clearly implies that, according to regu-
lations, a vessel is not liable to be seized after discharge of her
cargo at the hostile port. In the case of the Imina, Sir W. Scott
said :
"Taking it, however, that they (the goods conveyed, ship
timber) are of such a nature as to be liable to be considered
contraband on a hostile destination, I cannot fix that character
on them in the present voyage. The rule respecting contraband,
9S I have always understood it, is that the articles must be
taken in delicto in the actual prosecution of the voyage to an
enemy's port. Under the present understanding of the law of
nations you cannot take the proceeds on the return voyage.
* * * if tb e goods are not taken in delicto, and in the actual
prosecution of such a voyage, the penalty is not generally held
to attach."
It therefore follows that the Vladivostok prize court, in pro-
ceeding on the principle that a vessel is liable to be confiscated
after she has conveyed contraband to a hostile port, decided
contrary both to modern continental maritime law as enunciated
by its greatest living exponent, to maritime law as enunciated
a hundred years ago by Lord Stowell, and to Russian naval
regulations of the present day. (International Law as inter-
preted during the Russo-Japanese War, Appendix F, p. 438.)
Decision of St. Petersburg court on appeal. — The su-
preme court at St. Petersburg, in the case of the Allanton
on appeal, said:
The fact of the steamer Allanton having embarked a cargo at
an enemy's port and from a Japanese company cannot serve as
sufficient grounds for confiscation, inasmuch as, if the Japanese
company be considered the owners of the cargo previous to its
delivery to the holders of the bill of lading, it would yet not be
liable to confiscation in virtue of Article II of the Maritime Prize
Regulations, which provides that a neutral flag covers an enemy's
cargo, provided that it is not contraband, whereas coal could
be recognized as contraband only in such case if it were being
conveyed to the enemy or to an enemy's port, which was not so
120 VIOLATION OF BLOCKADE, ETC.
in the present case. The circumstances which, in the first in-
stance, led to the surmise that the cargo of the steamer Allanton
was destined for delivery to the enemy or to an enemy's port,
are removed by virtue of the documents submitted at the trial
of the case in the supreme prize court, and have no definite
effect.
The delivery by the Allanton on her first voyage of a cargo of
Cardiff coal to the Japanese port of Sasebo cannot serve as suffi-
cient ground for the confiscation of the cargo subsequently shipped
from Mororan to Singapore, as, in virtue of Article XI of the
Prize Regulations, vessels of neutral nationality are liable to
confiscation only in event of their being caught in the act of
conveying contraband to the enemy or to an enemy's port, and
by no means if they had on a previous occasion carried contraband
to the enemy.
The route which was taken by the steamer Allanton from Mo-
roran has been accepted as the shortest, as also the statement of
Captain Motger to the effect that, in carrying coal not as contra-
band, but to a neutral port, he had no cause to fear detention of
the vessel. Although, according to the decision of the Chief
Hydrographic Department, the majority of vessels prefer the
ocean route, owing to frequent fogs which occur in the Japanese
Sea making it dangerous for navigation, but as it would appear
from this decision that some vessels nevertheless take the route
across the Japanese Sea, the route taken by the captain of the
Allanton cannot serve as evidence against him. The discovery
on board the vessel of the Japanese, Tatiki Miachara, if there
had been any cause for suspicion in the beginning, in view of his
possessing no documents establishing his identity, this suspicion
is now removed, as on further investigation of the case it was
not proved that he had acted as agent for the enemy's government,
or had been intrusted with the delivery of the cargo of coal.
The omission of entries in the official log book from the 15th of
May, 1904, although an infringement of the regulations for keep-
ing log books, is yet insufficient for disqualifying the evidence
brought forward in regard to the steamer having been directed
to Singapore, more especially as the entries in the other ship's
log were properly made.
Admitting, on the foregoing grounds, that the steamer Allanton
and her cargo were not liable to confiscation, the supreme prize
court, guided by Article XXX of the Prize Regulations, imperially
confirmed, then considered the question as to whether there
were sufficient grounds for the detention of the steamer Allanton
and her cargo, and whether the established conditions and rules
were observed on such detention. The supreme court found that
there were in every respect sufficient grounds for suspicion that
her cargo was destined for the enemy or for the enemy's port.
U. S. COURT ON CARRYING CONTRABAND. 121
The Admiralty court at St. Petersburg rendered a
decision in the appeal of the Allanton, October 9/22,
1904:
1. The steamer Allanton and cargo, consisting of coal, to be
considered as not subject to confiscation and to be set free.
2. The arrest of the steamer and cargo to be considered as
having been made on sufficient ground.
3. The decision of the Vladivostok prize court in that part
which relates to the confiscation of the vessel to be reversed.
(U. S. Foreign Relations, 1905, p. 754.)
Opinion of United States court on carriage of contra-
band. — In the case of the sloop Ralph the court held the
opinion that —
Upon the general question of contraband it may be said: The
transportation of contraband articles to one of the belligerents
is in itself an assault for the time being upon the other bellig-
erent, in the fact that it may furnish them with the weapons of
war and thereby increase the resources of their power as against
their adversary; and for that reason, upon a broad ground of
self-preservation incident to nations as well as individuals, the
parties aganist whom the quasi assault is made have a right to
defend themselves against the threatened blow by seizing the
weapon before it reaches the possession of their enemy.
The seizure of contraband is not only punishment, but it is
also prevention, and the paramount purpose of its exercise is
prevention, just as in self-defense on the part of persons it is to
protect; but when the act is accomplished, the damage suffered,
and the danger passed, then the incidents of self-defense cease.
The extent to which the right to seize may be carried upon other
property belonging to the offending party depends upon a variety
of circumstances and conditions. The effect of the seizure may
be confined to the contraband articles alone, but may extend be-
yond those to other property of the guilty party by way of
punishment incident to the wrong of carrying contraband.
Upon that general doctrine of the subject of contraband there
is a qualification which was recognized by the courts at the time
the capture of this ship was made. The effect of that qualifi-
cation is that the outgoing voyage must be free from the taint
of fraud and misrepresentation made or practiced by persons in
charge of vessel upon the rights of belligerents. (39 TJ. S. Court
of Claims Reports, 204.)
So early as 1806, Mr. Madison, Secretary of State, wrote
that the rule " that a vessel on a return voyage is liable to
122 VIOLATION OF BLOCKADE, ETC.
capture by the circumstances of her having on the out-
ward voyage conveyed contraband articles to an enemy's
port " is an interpolation in the law of nations. (7
Moore International Law Digest, p. 748.)
(b) Conclusion as to liability for carriage of contra-
band. — In Situation VI (b) a neutral merchant vessel is
returning to a home port with the cargo received in ex-
change for a contraband cargo previously delivered to a
belligerent port. The offense involved in the carriage of
contraband is deposited with the contraband. If the neu-
tral merchant vessel is not guilty of any offense on the
return voyage the carriage of contraband on the outward
voyage involves no penalty and the neutral merchant ves-
sel should not be detained.
Liability of neutral vessel for service as collier. —
Under ordinarv circumstances coal in the time of war is
conditional contraband and as such its liability to con-
fiscation is determined by its destination. If destined for
the enemy fleet it would without question be regarded as
liable to capture until the cargo was deposited. The
contraband cargo only would be liable to confiscation un-
less the owner of the vessel was also an owner in the cargo
or unless the vessel had false papers or was involved in
some manner other than as simple carrier of freight in
the ordinary manner.
The neutral vessel under consideration in Situation VI
(c) has been accompanying the fleet as collier and is
returning to her home port after this service.
This act is not a simple act of carriage of contraband
of which the guilt is deposited with the delivery of the
contraband, but an act of service on the part of the neu-
tral vessel. The service has been in aid of the belligerent
as much as would be the service of one of the belligerent's
own colliers, for the vessel has accompanied the fleet with
the cargo of coal and is now returning from the service.
Such an act involves participation in the actual war un-
dertakings of State X. The neutral vessel which has
thus accompanied a fleet could have no destination except
such as that of the fleet and must be under the control
SERVICE AS COLLIER. 123
of the commander of the fleet and practically a part of the
fleet. The belligerent has received more than the simple
supply of coal. The collier has been at his service, ac-
companying the fleet, and giving a certainty of supply as
demanded.
The collier has, on the other hand, received the protec-
tion of the fleet to the full extent. Its compensation has
probably been certain and adequate. It has not merely
furnished coal in the manner- of an ordinary sale or even
as an ordinary transaction in contraband. Up to the
time of its return, i. e., till it had completed its service, it
was practically under convoy of the belligerent fleet.
The whole career of the vessel while engaged as a collier
for the fleet was such as to identify the interests of the
collier with those of the belligerent. The act was some-
thing more than the carriage of contraband. It was an
act of unneutral service. It was an act of the nature of
service "for a warlike purpose in aid of a foreign state"
which under the British Foreign Enlistment Act of 1870
forfeits ship and equipment to the Government.
If the ship is guilty of an offense in thus being "em-
ployed in the military or naval service of any foreign
state at war with any friendly state" (section 8, Act of
1870) which makes it liable to confiscation by its own
government then the offense as concerns the belligerent
against whom the vessel has served is certainly equal and
an equal penalty would be justified, i. e., confiscation of
the ship.
Further, the personnel of the collier has identified itself
with the personnel of the belligerent and has practically
entered the service of the belligerent. The personnel of
the collier would therefore be liable to treatment of
prisoners of war, as persons in the service of the enemy.
The British and other neutrality laws make such service
penal by municipal law so it would be no injustice to
make the officers and crew liable to the laws of war.
It may be argued, however, that the vessel under con-
sideration is returning from its service as collier accom-
panying the fleet and that it is not liable after the com-
124 VIOLATION OF BLOCKADE, ETC.
pletion of the service with the fleet. The British Foreign
Enlistment Act of 1870, section 8, is very definite as re-
lates to such service and its penalties.
If any person within Her Majesty's dominions, without the
license of Her Majesty, does any of the following acts, that is to
say —
(3) Equips any ship with intent or knowledge, or having rea-
sonable cause to believe that the same shall or will be employed
in the military or naval service of any foreign state at war with
any friendly state; or
(4) Dispatches, or causes or allows to be dispatched, any ship
with intent or knowledge, or having reasonable cause to believe
that the same shall or will be employed in the military or naval
service of any foreign state at war with any friendly state;
Such person shall be deemed to have committed an offense
against this act, and the following consequences shall ensue :
(1) The offender shall be punishable by fine and imprison-
ment, or either of such punishments, at the discretion of the
court before which the offender is convicted; and imprisonment,
if awarded, may be either with or without hard labor.
(2) The ship in respect of which such offense is committed,
and her equipment, shall be forfeited to Her Majesty.
The interpretation clause, section 30, defines " naval
service " and " equipping " as follows :
" Naval service " shall, as respects a person, include service as
a marine, employment as a pilot in piloting or directing the course
of a ship of war or other ship, when such ship of war or other
ship is being used in any military or naval operation, and any
employment whatever on board a ship of war, transport, store-
ship, privateer, or ship under letters of marque ; and as respects a
ship include any user of a ship as a transport, storeship, priva-
teer, or ship under letters of marque.
" Equipping " in relation to a ship shall include the furnishing a
ship with any tackle, apparel, furniture, provisions, arms,
munitions, or stores, or any other thing which is used in or about
a ship for the purpose of fitting or adapting her for the sea or
for naval service, and all words relating to equipping shall be
construed accordingly.
" Ship and equipment " shall include a ship and everything in
or belonging to a ship.
The neutral can not plead his nationality as an exemp-
tion for the consequences of an act which is in its nature
hostile.
CONCLUSION. 125
(c) Conclusion as to treatment of neutral collier serving
enemy fleet. — The collier has therefore been engaged in
unneutral service. This service is not to be confused with
the carriage of contraband, which is a commercial under-
taking and renders the goods liable to seizure, but the
service of the collier is unlike in nature, in intent, and in
penalty. As the neutral agent has identified himself with
the belligerent, the United States is justified in treating
him as a belligerent.
The regulations in regard to the liability for transport
service for the enemy hold that the penalties extend to
the ship and personnel. The liability for the breach of
blockade remains till the completion of the return voyage.
The liability of the collier under consideration should
certainly not be considered as deposited with its cargo.
If it were thus regarded a fleet of neutral colliers would
be of greater advantage to a belligerent than a fleet of
its own. The neutral colliers while bound for the fleet
might be liable to confiscation, etc., as would the bellig-
erent colliers, but after discharging the coal and leaving
the fleet would not, as would the belligerent colliers, be
liable to seizure. Therefore the neutral collier engaged in
belligerent service could go on from port to port incur-
ring liability only when loaded with coal and bound for
the enemy. Such a contention would seem hardly reason-
able when by domestic law such service is penalized.
In Situation Vi (c), therefore, when a war vessel of
the United States overtakes a neutral collier returning to
its home port after accompanying the fleet of its enemy,
State X, the United States commander should not hesi-
tate to seize the collier and send it with its crew to a prize
court, or, if necessary, to treat it immediately as an
enemy vessel might be treated under similar conditions.
Conclusion. — (a) The commander of the United States
war vessel, unless certain that the neutral vessel breaking
the blockade is exempt from seizure, should send the
neutral vesel to the nearest prize court.
(b) The neutral merchant vessel on her return voyage
is not liable to seizure because of carriage of contraband
126 VIOLATION OF BLOCKADE, ETC.
on the outward voyage and should not be detained for
such cause.
(c) If a war vessel of the United States overtakes a
neutral vessel which has accompanied the enemy fleet as
a collier before the neutral vessel has completed her voy-
age by return to the port of departure or to a home port,
the commander of the United States war vessel should
not hesitate to seize the collier and send it with its crew
to a prize court, or, if necessary, to treat it immediately
as an enemy vessel might be treated under similar con-
ditions.
Situation VII.
The commander of a war vessel of the United States
while cruising off the coast of State X is requested by a
duly authorized agent of State X to prevent a merchant
vessel of the United States from taking contraband into
a port of State X which happens to be near and to be in
the hands of insurgents. The agent of State X claims
that the merchant vessel has sailed from the United
States in violation of neutrality laws.
What action should the commander take?
SOLUTION.
The commander of the United States war vessel should
decline to interfere to prevent the carriage of goods by a
merchant vessel of the United States even though the
goods are bound to a port in the hands of an insurgent
and he is requested to interfere by the authorities of the
parent state.
NOTES ON SITUATION VII.
The United States law. — The attempt' has frequently
been made to bring the sale and carriage of contraband
under the neutrality laws of the United States; particu-
larly has been cited section 5283 of the Revised Statutes :
Every person who, within the limits of the United States, fits
outs and arms, or attempts to fit out and arm, or procures to be
fitted out and armed, or knowingly is concerned in the furnishing,
fitting out, or arming, of any vessel, with intent that such vessel
shall be employed in the service of any foreign prince or state, or
of any colony, district, or people, to cruise or commit hostilities
against the subjects, citizens, or property of any foreign prince or
state, or of any colony, district, or people, with whom the United
States are at peace, or who issues or delivers a commission within
the territory or jurisdiction of the United States, for any vessel,
to the intent that she may be so employed, shall be deemed guilty
127
128 INSURGENCY AND COMMERCE.
of a high misdemeanor, and shall be fined not more than ten
thousand dollars and imprisoned not more than three years. And
every such vessel, her tackle, apparel, and furniture, together
with all materials, arms, ammunition, and stores, which may
have been procured for the building and equipment thereof, shall
be forfeited ; one-half to the use of the informer and the other
half to the use of the United States.
Opinions of Mr. Bayard. — In 1885, a period of nu-
merous insurrections, Mr. Bayard, in a communication to
the Colombian minister, who protested against certain
shipments of arms from the United States, said :
Department of State,
Washington, March 25, 1885.
Sir : On the receipt of your note of the 17th instant complaining
that certain ordinary merchant vessels have sailed, or are about
to sail, from the port of New York having on board as part of
their cargoes boxes of arms and ammunition intended for the pur-
pose of assisting armed rebels who are now resisting on the Atlan-
tic coast of Colombia the authority of that Republic, I did not
fail to communicate the subject of its contents to the proper
authorities.
I now have the honor to inform you that it appears from a
recent communication from my colleague, the Attorney-General,
that the United States attorney at the port of New York has
been directed to be vigilant in enforcing those statutory pro-
visions which apply to the circumstances in which Colombia is
unhappily involved.
In this connection I deem it proper to invite your attention to
the fact that the existence of a rebellion in Colombia does not
authorize the public officials of the United States to obstruct
ordinary commerce in arms between citizens of this country and
the rebellious or other parts of the territory of the Republic of
Colombia. It is a well-established rule of international law that
the allowance of such commerce is no breach of duty toward the
friendly government whose enemies may thus be supplied with
arms.
As no charge is made that the vessels in question are armed
vessels intended for the use of the rebels mentioned, or that
military expeditions are being set on foot in this country against
the Republic of Colombia, the duties of this Government are
limited to the enforcement of the statutory provisions which
apply to such cases.
Accept, etc., T. F. Bayard.
OPINIONS OF ME. BAYARD. 129
In another communication two days later Mr. Bayard
says :
It has not as yet been possible to ascertain whether these arti-
cles are intended to be used in expeditions hostile to the Colom-
bian Government, but even should this prove to be the case, this
Government, however much it may regret the encouragement in
any manner from this country of the revolt against the constitu-
tional authorities of its sister Republic, must maintain the right
of its citizens to carry on without a violation of the neutrality
laws the ordinary traffic in arms with the rebellious or other
parts of that Republic, as more particularly set forth in my note
to you of the 25th instant. (U. S. Foreign Relations, 1885, pp.
238, 239.)
Mr. Bayard, in 1885, writing of certain attempts of the
Government of Colombia to close by decree ports held by
the Colombian insurgents, said :
After careful examination of the authorities and precedents
bearing upon this important question, I am bound to conclude, as
a general principle, that a decree by a sovereign power closing
to neutral commerce ports held by its enemies, whether foreign
or domestic, can have no international validity and no extra-
territorial effect in the direction of imposing any obligation upon
the governments of neutral powers to recognize it or to contribute
toward its enforcement by any domestic action on their part.
Such a decree may indeed be necessary as a municipal enactment
of the state which proclaims it, in order to clothe the Executive
with authority to proceed to the institution of a formal and
effective blockade, but when that purpose is attained its power is
exhausted. If the sovereign decreeing such closure have a naval
force sufficient to maintain a blockade, and if he duly proclaim
such a blockade, then he may seize, and subject to the adjudica-
tion of a prize court, vessels which may attempt to run the block-
ade. If he lay an embargo, then vessels attempting to evade
such embargo may be forcibly repelled by him if he be in posses-
sion of the port so closed. But his decree closing ports which are
held adversely to him is, by itself, entitled to no international
respect. Were it otherwise the de facto and titular sovereigns
of any determinate country or region might between them exclude
all merchant ships whatever from their ports, and in this way
not only ruin those engaged in trade with such states, but cause
much discomfort to the nations of the world by the exclusion of
necessary products found in no other market.
The decree of closure of certain, named ports of Colombia con-
tains no information of an ulterior purpose to resort to a pro-
25114—08 9
130 INSURGENCY AND COMMERCE.
claimed and effective blockade. It may, therefore, be premature
to treat your announcement as importing such ulterior measures;
but it gives me pleasure to declare that the Government of the
United States will recognize any effective blockade instituted by
the United States of Colombia with respect to its domestic ports
not actually subject to its authority. This Government will also
submit to the forcible repulsion of vessels of the United States by
any embargo which Colombia may lay upon ports of which it has
possession when it has power to effect such repulsion ; but the
Government of the United States must regard as utterly nugatory
proclamations closing ports, which the United States of Colombia
do not possess, under color of a naval force which is not even
pretended to be competent to constitute a blockade. (Foreign
Relations U. S., 1SS5, p. 256.)
In the year 1886 Mr. Bayard sent the following com-
munication to Mr. Hall, United States diplomatic rep-
resentative in Central America :
Department of State,
Washington, February 6, 1886.
Sir : I transmit, for your information, copies of the corres-
pondence exchanged between Mr. Jacob Baiz, consul-general of
Honduras at New York, and this Department touching the move-
ments of the American steamer City of Mexico outside of the
jurisdiction of the United States. It will be seen from the
letters of Mr. Baiz that he labors under the impression that to
prevent a violation of our neutrality laws this Government should
instruct its vessels of war to keep a watch on the City of Mexico,
having, as is alleged, an unlawful purpose against the peace of
Honduras.
I have not thought it necessary to discuss the matter with Mr.
Baiz. I have therefore confined myself to the statement that the
acts complained of were committed, if at all, against the sov-
ereign neutrality of Great Britain and should be dealt with
according to British law, and that this Government had already
given abundant proof of its desire to prevent any violation of its
neutrality within the jurisdiction of the United States.
With these prefatory remarks it appears not inappropriate to
add a few general observations upon the subject.
It is usual, when application is made to this Department to
take action to prevent what are supposed to be impending
breaches of neutrality, to base such application on affidavits, or
on statements of proof susceptible of being reduced to affidavits,
on which the interposition of the Department is asked. This
requisite has not been insisted upon in the present instance, for,
supposing the case presented by the letter of Mr. Baiz to be fully
verified, it is not one on which any present action of the Depart-
ment could be based.
OPINION OF MR. BLAINE. 131
Breaches of neutrality may be viewed by this Government in
two aspects: First, in relation to our particular statutes, and
secondly, in respect of the general principles of international law.
Our own statutes bind only our own Government and citizens. If
they impose on us a larger duty than is imposed on us by inter-
national law, they do not correspondingly increase our duty to
foreign nations, nor do they abridge our duties if they establish
for our municipal regulation a standard less stringent than that
established by international law.
The complaint that Mr. Baiz makes is, that the steamship City
of Mexico, a passenger and freight vessel, claimed to be entitled
to carry the flag of the United States, took on board at Belize,
January 12 last, when on her ordinary coasting route, some polit-
ical refugees who it is supposed were meditating hostile action
against the Government of Honduras.
It will scarcely be contended that such an act as this, even sup-
posing it would be regarded as a breach of neutrality if committed
within the jurisdiction of the United States, can be imputed to
the United States when committed in a foreign port ; nor can it
justly be urged that, because the vessel in question sails under
the flag of the United States, it is the duty of this Government to
send cruisers to watch her to prevent her from committing
breaches of neutrality when on her passage from one foreign
port to another. For this Government to send armed vessels to
such ports to control the actions of the City of Mexico would be
to invade the territorial waters of a foreign sovereign. For this
Government to watch its merchant and passenger vessels on the
high seas, to stop them if they carry contraband articles or pas-
sengers meditating a breach of neutrality, would impose on the
United States a burden which would be in itself intolerable, which
no other nation has undertaken to carry, and which the law of
nations does not impose.
In what has been stated I have referred exclusively to the inter-
national obligations imposed on the United States by the general
principles of international law, which are the only standards
measuring our duty to the Government of Honduras. Whether
the City of Mexico, when she returns to her home port, or those
concerned in her or in this particular voyage, may be subject to
adverse procedure under our neutrality statutes, I have not
deemed it necessary here to discuss or decide.
I am, etc., T. F. Bayard.
(U. S. Foreign Relations, 1886, p. 51.)
Opinion of Mr. Blaine. — It has quite often happened
that during insurrections the established government has
tried to obtain the rights of war without admitting its
existence. Sometimes, as in 1891 in the case of Chile, pro-
132 INSURGENCY AND COMMERCE.
kibitions are issued against the importation of certain
articles. At this time the Secretary of State of the United
States replied to the Chilean minister as follows:
Department of State,
Washington, March 13, 1891.
Sir: I have the honor to acknowledge the receipt of your note
oil the 10th instant, in which you inform me that your Govern-
ment has prohibited, until further orders, the importation into
the Republic of arms and munitions of war of all kinds.
In conveying this information you request me, if possible, to
communicate this decree to the custom-houses of the United
States in order that the shipment of such articles to Chile may be
pi evented; and in this relation you state that an agent of the
insurgents in Chile has arrived in the city of New York for the
purpose of purchasing arms and munitions of war.
The laws of the United States on neutrality, which may be
found under Title LXVII of the Revised Statutes, while forbid-
ding many acts to be done in this country which may affect the
relations of hostile forces in foreign countries, do not forbid the
manufacture and sale of arms or munitions of war. I am there-
fore at a loss to find any authority for attempting to forbid the
sale and shipineut of arms and munitions of war in this country,
since such sale and shipment are permitted by our law. In this
relation it is proper to say that our statutes on this subject are
understood to be in conformity with the law of nations, by which
the traffic in arms and munitions of war is permitted, subject to
the belligerent right of capture and condemnation.
Since your note has directed attention to the subject of neu-
trality, it should be stated that our laws on that subject are put
in force upon application to the courts, which are invested with
the power to enforce them and to inflict the penalties prescribed
for their violation. Our statutes not only forbid the infringement
in this country of the rules of neutrality, but also impose grave
penalties for their infraction.
I will inclose a copy of your note to the Secretary of the Treas-
ury and the Attorney-General.
Accept, etc., James G. Blaine.
(Foreign Relations U. S., 1891, p. 314.)
Opinion of Mr. Sherman. — In a long dispatch to Uni-
ted States Minister Woodford in Spain, November 20,
1897, Secretary of State John Sherman says, among other
remarks upon duties of the United States in time of in-
surrection —
It is to be borne in mind that Spain insists that a state of war
does not exist between that Government and the people of Cuba;
OPINION OF MR. SHERMAN. 133
that it is engaged in suppressing domestic insurrection that does
not give it the right, which it so strenuously denies itself, to in-
sist that a third nation shall award to either party to the struggle
the rights of a belligerent or exact from either party the obliga-
tions attaching to a condition of belligerency. It can not be
denied that the United States Government, whenever there has
been brought to its attention the fact or allegation that a sus-
pected military expedition has been set on foot or is about to
start from our territories in aid of the insurgents, has promptly
used its civil, judicial, and naval forces in prevention and sup-
pression thereof. So far has this extended and so efficient has the
United States been in this regard that, acting upon information
from the Spanish minister or from the various agencies in the
employ of the Spanish legation, vessels have been seized and de-
tained in some instances when investigations showed that they
were engaged in a wholly innocent and legitimate traffic. By
using its naval and revenue marine in repeated instances to
suppress such expeditions, the United States has fulfilled every
obligation of a friendly nation. Inasmuch as Spain does not
concede, and never has conceded, that a state of war exists
in Cuba, the rights and duties of the United States are such as
devolve upon a friendly nation toward another in case of an
insurrection which does not rise to the dignity of recognized war.
As you are aware, these duties have been the subject of not in-
frequent diplomatic discussion between the two Governments,
and of adjudications in the courts of the United States, as well
during the previous ten years' struggle as in the course of the
present conflict. The position of the United States was very
fully presented by Mr. Fish in his note of April 18, 1874, to Ad-
miral Polo de Bernabe (Foreign Relations of the United States,
1875, pp. 1178 et seq.) :
" What one power in such case may not knowingly permit to
be done to another power, without violating its international
duties, is defined with sufficient accuracy in the statute of 1S18,
known as the neutrality law of the United States.
" It may not consent to the enlistment within its territorial
jurisdiction of naval and military forces intended for the service
of the insurrection.
" It may not knowingly permit the fitting out and arming or
the increasing or augmenting the force of any ship or vessel
within its territorial jurisdiction, with intent that such ship or
vessel shall be employed in the service of the insurrection.
" It may not knowingly permit the setting on foot of military
expeditions or enterprises to be carried on from its territory
against the power with which the insurrection is contending."
Except in the single instance to be hereafter noticed, his excel-
lency the minister of state does not undertake to point out any
infractions of these tenets of international obligation so clearly
134 INSURGENCY AND COMMERCE.
stated by Mr. Fish. Did any further instance exist the attention
of this Government would have been called to it.
With equal clearness, Mr. Fish has stated in the same note the
things which a friendly government may do and permit under the
circumstances set forth.
" But a friendly government violates no duty of good neigh-
borhood in allowing the free sale of arms and munitions of war
to all persons, to insurgents as well as to the regularly constituted
authorities, and such arms and munitions, by whichever party
purchased, may be carried in its vessels on the high seas without
liability to question by any other party. In like manner its ves-
sels may freely carry unarmed passengers, even though known to
be insurgents, without thereby rendering the government which
permits it liable to a charge of violating its international duties.
But if such passeugers, on the contrary, should be armed and
proceed to the scene of insurrection as an organized body, which
might be capable of levying war, they would constitute a hostile
expedition which may not be knowingly permitted without a vio-
lation of international obligation."
Little can be added to this succinct statement of Mr. Fish. It
has been repeatedly affirmed by decisions of our courts, notably
by the Supreme Court of the United States, In the case of Wil-
borg v. The United States, 163 U. S. Reports, p. 632, Mr. Chief
Justice Fuller repeats, with approval, the charge of the trial
court, in which it was said (p. 653) :
" It was not a crime or offense against the United States under
the neutrality laws of this country for individuals to leave the
country with intent to enlist in foreign military service, nor was
it an offense against the United States to transport persons out of
this country and to land them in foreign countries, when such per-
sons had an intent to enlist in foreign armies; that it was not
an offense against the laws of the United States to transport
arms, ammunition, and munitions of war from this country to
any foreign country, whether they were to be used in war or not,
and that it was not an offense against the laws of the United
States to transport persons intending to enlist in foreign armies
and munitions of war on the same trip. But (he said) that if the
persons referred to had combined and organized in this country
to go to Cuba and there make war on the Government, and
intended when they reached Cuba to join the insurgent army and
thus enlist in its service, and the arms were taken along for their
use, that would constitute a military expedition, and the trans-
porting of such a body from this country for such a purpose would
be an offense against the statute."
These principles sufficiently define the neutral duties of the
United States, which have been faithfully observed at great ex-
pense and with much care by this Government. (U. S. Foreign
Relations, 1898, p. 609.)
CASE OF SOUTH PORTLAND. 135
Case of the South Portland. — There are many cases in
which United States authorities have been asked by states
to prevent the sale, carriage, or other dealings in war
material when insurrections existed in certain states.
Requests have come from both the parent states and the
insurgents.
Such reports as the following are not uncommon :
Legation of the United States.
Caracas, September 2k, 1892.
(Received September 24.)
Mr. Scruggs reports that the situation remains unchanged,
nothing new having occurred, and transmits a request of the
Government of Venezuela that the steamer South Portland, laden
with munitions of war in New York, be prevented from entering
Puerto Cabello by the naval forces of the United States.
Replying to the request that the United States naval
force interfere to prevent the entrance to a Venezuelan
port during insurrection of a private vessel of the United
States with contraband. Minister Scruggs reports :
I pointed out that the mere exportation of arms and munitions
of war from the United States had never been held an offense
against our neutrality laws; that as all the belligerents in Vene-
zuela enjoyed this right equally, none of them could justly com-
plain ; that his Government had the right, under the law of na-
tions, to seize contraband of war on its transit to the enemy, and
we would not be likely to complain, should this right be exercised
hi a legitimate and proper manner; but that, as neutrals, we
could hardly be expected to employ our naval force to make the
blockade of Puerto Cabello effective, nor to police the high seas
in the interest of one belligerent against another. (U. S. Foreign
Relations, 1892, p. 626.)
English opinion, — The court maintained in the case
of the Helen , commerce which was lawful for the neutral
with either belligerent country before the war is not
made by the war unlawful or capable of being prohibited
by both or either of the belligerents. (13 Law Times
Reports, 305.) What is lawful trade in times of war
would certainly be lawful when no war existed and in-
surgency only existed.
Such opinions do not imply that the foreign state
should aid or protect those who engage in such commerce
13(> INSUKGENCY AND COMMEKCE.
with a party to a civil conflict. Such trade is liable to
be prevented by force within the jurisdiction of the dis-
turbed state.
Belgian opinion. — Regarding the trade in arms and ammunition
and other contraband objects, the Government of the King, looking
to the strict observance of the duties prescribed by neutrality, does
not intervene either to protect or prohibit it. No law prohibiting
the exportation of these products of national industry, the trade in
question is carried on freely in the country, but outside the terri-
tory, at the risks and perils of those who carry it on. (Belgian
minister of foreign affairs to Mr. Storer, September 6, 1S98; 7
Moore International Law Digest, p. 747.^
Professor Moore's Opinion. — The right of foreigners to
supply war materials to those engaged in civil conflict is
limited, as Professor Moore states:
From what has been shown it may be argued that, without
regard to the recognition or nonrecognition of belligerency, a
party to a civil conflict who seeks to prevent, within the national
jurisdiction and at the scene of hostilities, the supply of arms
and munitions of war to his adversary commits not an act of
injury, but an act of self-defense, authorized by the state of hos-
tilities; that, the right to carry on hostilities being admitted, it
seems to follow that each party possesses, incidentally, the right
to prevent the other from being supplied with the weapons of
war; and that any aid or protection given by a foreign govern-
ment to an individual to enable him with impunity to supply
either party with such articles is to that extent an act of inter-
vention in the contest. (7 International Law Digest, p. 17v2.)
Trade in contraband. — While in time of recognized
belligerency either belligerent has a right to seize on the
high seas contraband bound for the enemy, this right
does not exist in time of an insurrection which has not
yet been recognized as a state of war. Yet the nonrecog-
nition of belligerency does not change the character of
the act. Citizens of foreign states engaged in the car-
riage of articles which would be regarded as contraband
if belligerency was recognized are liable to the conse-
quences of their act if taken within the jurisdiction of
the state where the insurrection exists. In time of recog-
nized belligerency a state is not under obligation to pre-
vent its subjects from engaging in contraband trade.
No more would it be under obligation to prevent such
CONCLUSION. 137
trade at a time when no recognition of belligerency had
been granted.
It is equally well established that trade in arms and
munitions of war in the time of actual hostilities is at
the risk of the one engaged in the trade and may be
prevented by either party within national jurisdiction.
Any aid to a revolting party in the carrying out of
domestic hostilities would be an unfriendly act to the
parent state which the parent state could oppose by such
means as were within its power.
Under the circumstances, as presented in Situation
VII, a port of State X is in the hand of insurgents.
Strictly speaking, there is no contraband until there
is war, but the United States has often put into opera-
tion its neutrality laws during a period of insurrection
in a foreign state and has admitted its obligation to re-
strain certain actions on the part of its citizens. The
carriage of contraband has never been regarded as a vio-
lation of neutrality in the sense that a neutral state must
prevent such action, as it is evident that a neutral state
could not prevent such action in all instances even if it
should regard it as expedient. The penalty for the car-
riage of contraband is the seizure of the goods by the bel-
ligerent. The naval forces of a neutral are under no
obligation to assist in enforcing this penalty.
In the case under consideration the authorities of State
X may take such action within their own jurisdiction
as may be necessary to prevent the entrance of the mer-
chant vessel of the United States.
Conclusion. — The commander of the United States war
vessel should decline to interfere to prevent the carriage
of goods by a merchant vessel of the United States even
though the goods are bound to a port in the hands of an
insurgent and he is requested to interfere by the authori-
ties of the parent state.
Situation VIII.
There is war between States X and Y. State Z is
neutral. A commander of a war vessel of State X main-
tains that a private vessel of neutral State Z which has
aided State Y by transmitting wireless telegraph mes-
sages is liable to capture as guilty of unneutral service.
He also maintains that neutral State Z should assume
some responsibility for the use of wireless telegraph
within its own jurisdiction.
The commander is asked for a brief statement of the
restrictions which might well apply to the use of wireless
telegraphy in time of war.
Under present conditions, what statement might he
make?
SOLUTION.
(a) A belligerent may regulate or prohibit the use of
wireless telegraph within the area of hostilities.
(b) A neutral state should use reasonable care to pre-
vent within its jurisdiction the unneutral use of wireless
telegraph.
(c) Unneutral use of wireless telegraph on board a
vessel makes the vessel liable to the penalty of capture
by a belligerent, or to confiscation or sequestration of the
apparatus, or of the vessel, or of both by a neutral.
(d) A vessel intentionally aiding a belligerent by the
use of wireless telegraph is liable to the penalty until the
end of the war.
NOTES ON SITUATION VIII.
Nature of service. — The usefulness of wireless telegra-
phy, which a few years ago was problematical, is now
amply proven. This was shown in the South African
war, some of the German wars in Africa, and in the
Russo-Japanese war.
The general principle of wireless telegraphy is based
on the fact that the oscillation of an electric spark gen-
erates ether waves, usually called, from the discoverer,
138
CONTROL OF CABLES. 139
Hertzian waves. As these waves were discovered in 1887,
it is but natural that no extended international law prece-
dents in regard to their use have yet been established.
The Hertzian waves may move to a considerable distance
in any direction from the generator. They may by
proper apparatus be received at any point within this
sphere. The present lack of control of the direction
in which the waves may move differentiates the service in
this respect from that of wire telegraphy.
There are various systems of transmitting and receiving
the Hertzian waves. Certain states have given prefer-
ence to a single system, while other states permit the use
of several systems. The Telefunken system is used in
Germany and in the German navy. The same system is
receiving favorable consideration in Holland, Norway,
and South American States, and also Sweden, and has
been the subject of experimental use in some of the Brit-
ish dependencies. In Russia the Popoff S3 7 stem is used.
The Rochefort and the Ducretet systems have received
support in France. The Marconi system has exclusive
rights in Italy and extensive use elsewhere. In the
United States the Telefunken, Deforest, and Marconi
S3 r stems are in use. Certain countries have special sys-
tems or variations of the above systems in use. The great
diversity in control and in operation shows the need of
governmental and international regulation.
Control of submarine cables. — The principles of con-
trol as stated in the Naval War College lectures on Sub-
marine Cables in 1901 seems to apply in some respects to
wireless telegraphic equipment. It was maintained in
regard to submarine cables that, " The right to legislate
for this form of property is, therefore, in the power of
the state, or in case no legislation has been enacted, the
legal control is in the proper department of the govern-
ment." This position was affirmed by Secretary Fish as
early as July 10, 1869, as follows:
It is not doubted by this Government that the complete control
of the whole subject, both of the permission and the regulation of
foreign intercourse, is with the Government of the United States,
and that, however suitable certain legislation on the part of a
140 WIRELESS TELEGRAPHY.
State of the Union may become, in respect to proprietary rights
in aid of such enterprises, the entire question of allowance or
prohibition of means of foreign intercourse, commercial or politi-
cal, and of the terms and the conditions of its allowance is under
the control of the Government of the United States. (Sen. Doc.
122, p. 65.)
President Grant took practically the same position in
his message of December, 1875, and since that time the
position has often been reaffirmed. All foreign sub-
marine cables 'having a terminus in the United States
have been landed under a distinct condition that the
'"■ executive permission is to be accepted and understood
by the company as being subject to any future action of
Congress in relation to the whole subject of submarine
telegraphy." An opinion of the Attorney- General, in
accordance with which the President was entitled to act
and to order all the departments of executive character to
act, sums up the matter as follows :
The preservation of our territorial integrity and the protection
of our foreign interests is intrusted, in the first instance, to the
President. * * * The President has charge of our relations
with foreign powers. It is his duty to see that in the exchange
of comities among nations we get as much as we give. He
ought not to stand by and permit a cable to land on our shores
under concessions from a foreign power which does not permit
our cables to land on its shores and enjoy there facilities equal
to those accorded its cable here. * * * The President is not
only the head of the diplomatic service, but Commander in
Chief of the Army and Navy. A submarine cable is of inesti-
mable service to the Government in communicating with its
officers in the diplomatic and consular service, and in the Army
and Navy when abroad. The President should therefore demand
that the Government have precedence in the use of the line, and
this was done by President Grant in the third point of his message
* * * The Executive permission to land a cable is, of course,
subject to subsequent Congressional action. The President's au-
thority to control the landing of a foreign cable does not flow from
his right to permit it in the sense of granting a franchise, but
from his power to prohibit it should he deem it an encroachment
on our rights or prejudicial to our interests. The unconditional
landing of a foreign cable might be both, and therefore to be
prohibited, but a landing under judicious restrictions and con-
ditions might be neither, and therefore to be permitted in the
promotion of international intercourse. (22 Opin. Atty. Gen.,
p. 25.)
GERMAN AGREEMENT. 141
In a later decision it was held that —
the same restriction applied to the landing of submarine cables
in Cuba in the time of military occupation on the island. (Ibid.,
p. 515.)
There can, then, be no doubt that for the executive branches
of the United States Government the principle of control by the
President is established in absence of any legislation to the con-
trary. (Wilson, Submarine Telegraphic Cables in their Inter-
national Relations, p. 11.)
Agreement between United States and Germany. — The
conditions under which submarine cables are per-
mitted to be laid and operated within United States
territory are shown in the following memorandum:
MEMORANDUM.
In the matter of the application of the Deutsch-Atlantische Tele-
graphen-Gesellschaft of Germany for permission to land on the
shores of the United States a submarine telegraph cable, to be
laid between Germany and the United States.
The President having duly considered said application, hereby
consents that said company may lay, construct, land, maintain,
and operate telegraphic lines or cables on the Atlantic coast of
the United States, to connect Borkum-Emden, in the Empire of
Germany, and the city of New York, touching at the Azores.
It is a condition to the granting of said consent that said com-
pany first file with its said application, in the Department of
State, its written acceptance of the terms and conditions on
which said consent is given, to wit :
I.
That neither the said company, its successors or assigns, nor
any cable with which it connects, shall receive from any foreign
government exclusive privileges which would prevent the estab-
lishment and operation of a cable of an American company in the
jurisdiction of such foreign government.
II.
That the company has received no exclusive concessions from
any government which would exclude any other company or
association, which may be formed in the United States of
America, from obtaining a like privilege for landing its cable or
cables on the shores of Germany, and connecting such cable or
cables with the inland telegraph system of said country.
L42 WIRELESS TELEGRAPHY.
III.
That the said company shall not "consolidate or amalgamate
with any other line or combine therewith for the purpose of
regulating rates.
IV.
That the company will, in the transmission of official messages,
give precedence to messages from and to the Government of the
United States of America and of other governments.
V.
That the rates charged to the Government of the United States
shall not be greater than those to any other government, and the
said rates and those charged to the general public shall never
exceed the present telegraphic rates between said counties, and
shall be reasonable.
VI.
That the Government of the United States shall be entitled to
the same or similar privileges as may by law, regulation, or agree-
ment be granted by said company or its successors or assigns to
any other government.
VII.
That the citizens of the United States shall stand on equal foot-
ing as regards the transmission of messages over said company's
lines with citizens or subjects of Germany or any other country
with which said cable may connect.
VIII.
That messages shall have precedence in the following order:
(a) Government messages and official messages to the Govern-
ment.
(ft) Service messages.
(c) General telegraphic messages.
IX.
The said line shall be kept open for daily business, and all
messages in the order above be transmitted according to the time
of receipt.
X.
That no liability shall be assumed by the Government of the
United States by virtue of any censorship which it may exercise
over said line in the event of war or civil disturbance.
REPORTS OF BOARDS. 143
XI.
That the consent hereby granted shall be subject to any future
action by the Congress or by the President, affirming, revoking,
or modifying, wholly or in part, the said conditions and terms
on which said permission is given. (U. S. Foreign Relations, 1899,
p. 311.)
The conditions set forth in this memorandum show that
the United States retains full power over cables which are
permitted to operate within its jurisdiction. This prin-
ciple of control would involve censorship over or even dis-
continuance of the service. The control would also in-
volve some degree of responsibility. It may be reasonable
to expect, so far as practicable, a corresponding control of
wireless telegraphy. The medium of communication is
not the same, but the principles involved are to some ex-
tent similar.
Report of Inter-Departmental Board. — The conclusions
of the Inter-Departmental Board on wireless telegraphy,
made to the President of the United States, July 12, 1904,
are:
That the maintenance of a complete coastwise system of wire-
less telegraphy by the Navy Department is necessary for the
efficient and economical management of the fleets of the United
States in time of peace and their efficient maneuvering in time
of war.
That the best results can be obtained from stations under the
jurisdiction of one Department of the Government only, and that
representatives of more than one Department should not be quar-
tered at any station.
And finally the Board concludes that the Government must take
the necessary steps to regulate the establishment of commercial
wireless telegraph stations among the States and between na-
tions. (Report, p. 9.)
Report of General Board, Navy. — Some form of effect-
ive Government control of wireless telegraphy seems
necessary both for commercial and military reasons. It
also seems proper that as in the postal service, and in the
telegraph service in certain States, Government employees
should be placed in charge of the wireless communica-
tion. The General Board, Navy Department of the
United States, in a report to the Secretary of the Navy,
144 WTRELESS TELEGRAPHY.
]Nlay 2, 1904, considered the question of control of wire-
less telegraph.
The report considers specific points. It states:
2. The questions are:
Whether or not all wireless telegraph stations belonging to the
Government on or near the seacoast ought to be under a common
control?
If so, which Department of the Government can best exercise
the control?
What is necessary in order to control private seacoast wireless
telegraph stations?
3. In all this discussion the term " seacoast " includes all wire-
less telegraph stations capable of communicating with ships at
sea, whatever their actual distance inland, and includes the Great
Lakes and the insular possessions of the United States, as well
as the Atlantic, Gulf, and Pacific coasts.
4. The following facts must, in the opinion of the General Board,
form the basis of the decision :
5. The principal defect of wireless telegraphy, the liability to in-
terference, renders some central control indispensable to the
integrity and effectiveness of any wireless telegraph station.
Without control over the placing of other stations, any wireless
telegraph station may be rendered absolutely useless either by
accident or design.
6. The control of all wireless telegraph stations belonging to
the Government can be accomplished by Executive order. In
order to control private stations, general legislation by Congress
will be required, both because wireless telegraphy bridges the
boundaries between States and because it stretches beyond the
territorial limits of the nation.
7. The principal use of wireless telegraphy is now, and long
will be, at sea — between ship and ship, or ship and shore. On
shore other means of communication always exist, often better,
always possible substitutes. The common telegraph or telephone,
or the heliograph, permanent or portable, is everywhere available
to the soldier or meteorologist. Permanent outlying stations can
be connected by submarine cables. Although wireless telegraphy
may be an added convenience, on shore it never can be indispen-
sable. But from ships at sea, out of sight of flags or lights, and
beyond the sound of guns, the electric wave, projected through
space, invisible and inaudible, can alone convey the distant mes-
sage.
8. In the present state of the science, development and experi-
ment must be carried on largely at sea. We know as yet little
of the limitations or possibilities of marine and transmarine com-
munication. The Navy is the only Department of the Govern-
ment that has facilities for this branch of the work, and, irre-
KEPOKT OF NAVAL BOARD. 145
spective of what is done by other Departments, the Navy must, in
its own interest, continue to experiment and to communicate
between its ships and the shore.
9. To the Navy, wireless telegraphy is absolutely essential. All
the battle ships and larger cruisers, perhaps even torpedo boats,
are or will be equipped with it — as foreign navies are — to com-
municate with each other, as well as with the shore.
10. The Navy has already 20 wireless telegraph stations on the
seacoast and proposes to establish no less than 60 more. The
Navy has already made arrangements to receive at its stations
and to transmit over the land telegraph lines wireless messages
from passing merchant vessels. The Army has 2 stations in use
in Alaska and 2 others for experimenting, and has considered
placing 1 at the Golden Gate on the Pacific coast. The Weather
Bureau has 2 stations and proposes to erect 7 more. All these
stations, except the 2 in Alaska, which are for communicating
with each other, are for the purpose of communicating between
ships at sea, or in a few cases outlying islands and the mainland.
Several of the Army and Weather Bureau stations interfere, or
will interfere, with those of the Navy.
11. From these facts it appears clear that it would be in the
interest of all to put the seacoast wireless telegraph stations be-
longing to the Government under the control of one Department.
That control must extend to the determination of sites, and prob-
ably to the choice of systems, in order to prevent the several
Departments from frustrating one another's efforts. It does not
seem to the General Board that there will be much difference of
opinion on this question.
*******
24^ * * *
(1) It is absolutely necessary in time of war that the observers
stationed to receive messages from the fleet should be subject
to military law — that is, enlisted men of the Navy. Civilian
marine observers, however skillful in reporting merchant ships,
could not so well be trusted to distinguish the wireless messages
of friendly from hostile men-of-war, or to transmit accurately
technical naval signals, and could not be trusted at all with
the secret signal codes of the Navy. Whoever mans the seacoast
stations in time of peace, the Navy must man them in time of war.
(2) Unless the Navy mans the stations in time of peace it
will not have the trained force ready to man them in time of
war. Practice with instruments on shipboard alone will not suf-
fice. The man to be trusted at a seacoast station in time of war,
alert to detect the unexpected, must be familiar with the usual
local business in time of peace. The opportunity for training the
signal men is no less important than testing the apparatus.
*******
25114—08 10
146 WIRELESS TELEGRAPHY.
1G. The subject of legislation to control private wireless tele-
graph stations on the seacoast is of growing importance to the
Government because of the increase in the number of them and
their liability to interfere, maliciously or accidentally, with the
Government's stations. In order to safeguard its own interest,
both in peace and war, the Government must have some means
to prevent the erection of a private wireless telegraph station
within the range of interference of one of its own. It would
not be wise, in the opinion of the General Board, for the Govern-
ment to undertake to manage all the seacoast wireless telegraph
business of the country, nor for an industry of such growing
commercial utility to be controlled directly by a military branch
of the government. The Department of Commerce and Labor,
now charged with the administration of the Light-House Ser-
vice, the Coast Survey, the Inspection of Steamboats, and the
jurisdiction over merchant shipping generally, would perhaps
be the most natural one to control private wireless telegraph
companies. The law should clearly give the Government priority
of right and prohibit the erection of any private station without
the approval of the Government.
International agreement, 1903. — There was an inter-
national agreement on certain points between several
states at a convention held at Berlin August 4-13, 1903.
Austria, France, Germany, Hungary, Russia, Spain, and
the United States signed the protocol as follows :
FINAL PROTOCOL.
The delegations to the preliminary conference concerning wire-
less telegraphy designated below :
Germany, Austria, Spain, the United States of America, France,
Hungary, Russia, are unanimous in proposing to their Govern-
ments to examine the following general bases for an international
convention :
Article 1.
Exchange of correspondence between ships at sea and coastwise
wireless telegraph station opened to general telegraphic service
is subject to the following rules :
Sec. 1. All stations whose field of action extends to the sea are
called coastwise stations.
Sec. 2. Coastwise stations are required to receive and trans-
mit telegrams originating on ships at sea without distinction as
to the systems of wireless telegraphy employed by said ships.
Sec 3. The contracting states make public the technical points
of nature to facilitate and accelerate communication between
coastwise stations and ships at sea.
INTERNATIONAL AGREEMENT, 1903. 147
However, each of the contracting Governments can authorize
stations situated in' its territory, under such conditions as it may
deem proper, to utilize several installations or special arrange-
ments.
Sec. 4. The contracting states declare their intention to adopt,
in order to establish the tariffs applicable to telegraphic service
between ships at sea and the international telegraphic system,
the following bases:
The total charge to collect for this service is established by the
word. It comprises —
(a) The charge for transmission over the lines of the tele-
graphic system of which the amount is that fixed by the inter-
national telegraph regulation in force attached to the St. Peters-
burg Convention.
(b) The charge pertaining to the marine transmission.
The latter is, as the former, fixed by the number of words, this
number of words being counted according to the international
telegraphic rule as indicated in the paragraph above (a).
It comprises —
1°. A charge called " charge of the coastwise station," which
goes to said station.
2°. A charge called "charge of the ship," which goes to the
station installed on the ship.
The charge of the coastwise station is subject to the approval
of the state on whose territory it is established, and that of the
ship to the approval, of the state whose flag the ship carries.
Each of the two charges should be fixed on the basis of equit-
able renumeration for the telegraphic work.
Article II.
A regulation which will be attached to the proposed convention
will establish rules for the exchange of communications between
coastwise stations and those placed on board ship.
The prescriptions of this regulation may at any time be modified
by common agreement by the administration of the contracting
Governments.
Article III.
The rules of the telegraphic convention of St. Petersburg are
applicable to transmission by wireless telegraphy in so far as
they are not contrary to those of the proposed convention.
Article IV.
Wireless telegraph stations should, unless practically impos-
sible, give priority to calls for help received from ships at sea.
148 WIRELESS TELEGRAPHY.
Article V.
The service of operating wireless telegraph stations . should
be organized, as far as possible, in a manner not to interfere with
the service of other stations.
Article VI.
Contracting Governments reserve to themselves, respectively,
the right to make special arrangements themselves, having for
their object to oblige the companies operating wireless telegraph
stations in their territories to observe, in all their other stations,
the prescriptions of the proposed convention.
Article VII.
The prescriptions of the proposed convention are not applicable
to the wireless telegraph stations of the state not open to general
telegraphic service, save in that which concerns the clauses
which Articles IV and V are intended to cover.
Article VIII.
Countries which have not joined the proposed convention will
be admitted at their request.
Done at Berlin August 13, 1903.
(Then follow signatures of delegates for Germany, Austria,
Spain, the United States of America, France, Hungary, Russia.)
DECLARATION OF THE DELEGATION OF GREAT BRITAIN.
While engaging itself to submit the above bases to the examina-
tion of its Government, the British delegation declares that, in
view of the situation in which wireless telegraphy finds itself in
the Unted Kingdom, this delegation ought to maintain a general
reserve. This reserve relates especially to section 2 of the first
article and to the application of the rules of Article V to the
stations indicated in Article VII.
Done at Berlin August 13, 1903.
(Signatures follow.)
DECLARATION OF THE ITALIAN DELEGATION.
The delegation of Italy, while agreeing to submit to the exami-
nation of its Government the propositions contained in the final
protocol of the conference, ought, agreeably with the declarations
made by its members in the several meetings, to make on account
of the Government the following reservations:
Art. I, Sec 2. It would accept the proposed text only on con-
dition of the following addition being made : " Provided, that all
these systems give a known guarantee for good working in re-
BERLIN CONVENTION, 1906. 149
ciprocal correspondence with respect to the range, to the perfec-
tion of the organization and to the surety of communications."
Art. I, Sec. 3. It can not accept the first paragraph of this sec-
tion because in the agreements concluded with M. Marconi the
Government engages to keep the details of the installations secret.
Art. VI. It can not accept the text of this article, and it should
limit itself to the declaration on the part of its Government that
it will endeavor to introduce in the agreements stipulated with
M. Marconi some modifications in the desired direction.
Done at Berlin August 13, 1905.
(Signatures follow.)
By Article III of this protocol the rules of the St. Petersburg
convention are adopted so far as consistent.
Berlin Wireless Convention, 1906. — The following
states are parties to the International Wireless Telegraph
Convention concluded at Berlin, November 3, 1906 : Ger-
many, the United States of America, Argentina, Austria-
Hungary, Belgium, Brazil, Bulgaria, Chile, Denmark.
Spain, France, Great Britain, Greece, Italy, Japan, Mex-
ico, Monaco, Norway, the Netherlands, Persia, Portugal,
Roumania, Russia, Sweden, Turkey, and Uruguay.
Article 1 .
The High Contracting Parties undertake to apply the pro-
visions of the present Convention at all radiotelegraph stations —
coast station and ship stations — open for the service of public
correspondence between the land and ships at sea which are
established or worked by the Contracting Parties.
They undertake, moreover, to impose the observance of thesp
provisions upon private enterprises authorized either to establish
or work radiotelegraph coast stations open for the service of
public correspondence between the land and ships at sea, or to
establish or work radiotelegraph stations, whether open for
public correspondence or not, on board ships which carry their
flag.
Article 2.
The term " Coast Station " means any radiotelegraph station
which is established on land, or on board a ship permanently
moored, and which is used for the exchange of correspondence
with ships at sea.
The term " Ship Station " means any radiotelegraph station
established on board a ship which is not permanently moored.
150 WIRELESS TELEGRAPHY.
Article 16.
Governments which have not taken part in the present Con-
vention shall be allowed to adhere thereto on their request.
This adhesion shall be notified through the diplomatic channel
to the contracting Government under whose auspices the last
Conference has been held, and by it to all the others.
Adhesion involves as a matter of right of acceptance of all the
clauses of the present Convention and admission to all the ad-
vantages stipulated therein.
Article 17.
The provisions of Articles 1, 2, 3, 5, 6, 7, 8, 11, 12, and 17 of the
International Telegraph Convention of St. Petersburg of the
30/22 July 1875 are applicable to international radiotelegraphy."
a Extract from the International Telegraph Convention signed at St.
Petersburg, July 10/22, 1875 :
Article 1.
The High Contracting Parties concede to all persons the right to cor-
respond by means of the international telegraphs.
Article 2.
They bind themselves to take all the necessary measures for the pur-
pose of insuring tbe secrecy of the correspondence and its safe transmis-
sion.
Article 3.
They declare, nevertheless, that they accept no responsibility as re-
gards the international telegraph service.
Article 5.
Telegrams are classed in three categories :
1. State telegrams : those emanating from the head of the Nation, the
Ministers, the Commander-in-Chief of the Army and Naval forces, and
the Diplomatic or Consular Agents of the Contracting Governments, as
well as the answers to such telegrams.
2. Service telegrams : those which emanate from the Managements of
the Telegraph Service of the Contracting States and which relate either
to the international telegraph service or to subjects of public interest
determined jointly by such Managements.
3. Private telegrams.
In the transmission, the State telegrams shall have precedence over
other telegrams.
Article 6.
State telegrams and service telegrams may be issued in secret language,
in any communications.
Private telegrams may be exchanged in secret language between two
States which admit of this mode of correspondence.
The States which do not admit of private telegrams in secret lan-
guage upon the expedition or arrival of the same, shall allow them to
pass in transit, except in the case of suspension defined in article 8.
GENERAL. CONTROL OF MESSAGES. 151
Article 21.
The High Contracting Parties retain their full liberty concern-
ing radiotelegraph installations not covered by Article I, and, in
particular, concerning naval and military installations, which are
subject only to the obligation of Articles 8 and 9 of the present
Convention.
Nevertheless, when these installations carry on public corre-
spondence, they shall conform, for the performance of this service,
to the stipulations of the Regulations so far as concerns the man-
ner of transmission and the accounting.
Article 22.
The present Convention shall come into operation on and from
the 1st of July, 1908, and shall remain in force for an indefinite
period, or until the expiration of a year from the date of denun-
ciation.
Denunciation only takes effect as regards the Government in
whose name it is made. The Convention shall remain in force as
regards the other Contracting Parties.
General control of messages. — The Supreme Court of
the United States stated in 1886 that —
A telegraph company occupies the sa^ne relation to commerce
as a carrier of messages that a railroad company does as a
carrier of goods. Both companies are instruments of commerce
Article 7.
The High Contracting Parties reserve the right to stop the transmis-
sion of any private telegram which may appear dangerous to the safety
of the State or which may be contrary to the laws of the country, to
public order or good morals.
ARTICLE) 8.
Each Government also reserves the right to suspend the international
telegraph service for an indefinite period, if deemed necessary by it,
either generally, or only over certain lines and for certain classes of cor-
respondence, of which such Government shall immediately notify all the
other Contracting Governments.
, Article 11.
Telegrams relating to the international telegraph service of the Con-
tracting States shall be transmitted free of charge over the entire sys-
tems of such States.
Article 12.
The High Contracting Parties shall render accounts to one another of
the charges collected by each of them.
Article 17.
The High Contracting Parties reserve respectively the right to enter
among themselves into special arrangements of any kind with regard to
points of the service which do not interest the States generally.
152 WIRELESS TELEGRAPHY.
and their business is commerce itself. They do their transporta-
tion in different ways and their liabilities are in some respects
different, but they are both indispensable to those engaged to any
considerable extent in commercial pursuits. (Telegraph Co. r.
Texas, 105 U. S. Supreme Court Reports, 460.)
The government must necessarily control commerce,
and it is thus provided according to the fundamental law.
Wireless telegraphy would be a matter of commerce and
accordingly properly subject to governmental control.
Such control has been quite regularly exercised in regard
to telegraphy by means of wires. It is generally recog-
nized that government control may be expedient both
from commercial and military reasons. Austria, France,
Germany, Hungary, Russia, and Spain control their tele-
graph lines. If such control is, and it seems to be, both
legal and expedient, then government control of wireless
telegraphy should be assumed.
In the consideration of wireless telegraphy certain com-
plications arise. The analogy to ordinary telegraphy is
not complete. While a message may be sent from a given
point, it will not as in the ordinary telegraphy move only
in a direction determined by the sender. In ordinary
telegraphy the wire upon which the message travels is
tangible and may be cut if it can be reached. The destina-
tion of the message may be inferred if the course of the
wire is known. The apparatus of the ordinary telegraph
is practically stationary, even though in land warfare a
certain degree of mobility is secured at times. This is,
however, very limited and may not extend to maritime
movements. There must be wire connection between the
sending and receiving stations. Their locations may be
known, and hence the jurisdiction may be determined.
The transmission of dispatches ma} T thus be controlled.
Most governments have maintained some control over
land telegraphy and a general control over submarine
lines, even when connecting with a foreign state. It
is generally admitted that each government may when
necessary in war assume control of the wire telegraphy.
The uncontrolled use of wireless telegraphy would not
long be tolerated by any government which desired to
CONTROL OF TELEGRAPH IN WAR. 153
protect itself. This is particularly the case at present
because by present methods the sending of messages from
one station may interfere with similar work in another.
Control of telegraph in time of war. — The general
principles governing the relations of belligerents and
neutral are not changed by the introduction of wireless
telegraphy. The burden of the conduct of the war should
not be thrown upon neutrals, nor should neutrals partici-
pate in the war.
From the nature of wireless messages, they may reach
instruments within neutral jurisdiction without any guilty
participation on the part of those within neutral jurisdic-
tion. There is no means by which the neutral can pre-
vent the receipt of such messages other than by rendering
the station useless. Such action would not be similar to
that of sealing a cable connecting with belligerent terri-
tory, for the same wireless instrument may receive
messages from any source and is not, like the cable, lim-
ited to a connecting station easily determinable. It would
not be reasonable to demand that a neutral should close a
station simply because it might receive dispatches from a
belligerent. Nor would it always be possible for a given
station to determine the character of a message which it
might receive, because its source might be uncertain, or
if the source were known the message itself might be
apparently innocent in character. The possibility of neu-
tral control of wireless messages within neutral jurisdic-
tion would be quite different from that of control of wire
messages.
In the consideration of the treatment of submarine
cables in time of war the main question was one of in-
terruption of a material connection between two points.
In wireless telegraphy interruption may take place
whether intentional or unintentional without possibility
of fixing clearly the responsibility for the interruption.
Interruption or interference may be no more than tem-
porary and probably could not be permanent. The mes-
sage transmitted may not be sent in a single direction or
to a single point.
154 WIRELESS TELEGRAPHY.
The fifth section of the Brazilian neutrality proclama-
tion of 1898 states:
That it is prohibited, citizens or aliens residing in Brazil, to
announce by telegraph the departure or near arrival of any ship,
merchant or war, of the belligerents or to give to them any order,
instructions, or warnings, with the purpose of prejudicing the
enemy.
The last clause of this prohibition is of such a charac-
ter as to render its enforcement difficult, because it would
by implication make necessary that hostile intent on the
part of the person dispatching the message should be
proved. Neutrality does not consist simply in absence
of hostile intent or absence of " purpose of prejudicing
the enemy." The quality of the act determines its
character, and even though there may be no " purpose of
prejudicing the enemy," an act may prejudice the enemy.
The Treaty of Washington maintained that " due dili-
gence " should be exercised in order that a neutral might
not injure a belligerent. The general doctrine of
neutrality imposes the obligation upon the neutral state
that it shall be of neither party. If the last clause were
omitted from the section of the Brazilian proclamation
it would be more effective.
Further, it may be said that the prohibition applies to
persons resident in Brazil only, if a strict interpretation
is to be given to its first clause. It does not prohibit the
use of the means of communication for the purposes
specified, but prohibits certain persons from using the
telegraph for certain purposes. It would apparently
leave the telegraph open to the officers of vessels of either
belligerent if they chanced to be in a harbor of Brazil,
for they certainly could not be brought under the cate-
gory of " citizens or aliens residing in Brazil " against
whom prohibition runs. The Brazilian proclamation of
1898 is, however, indicative of an early attempt of a
neutral to regulate the use of the telegraph in time of
war.
It is unquestionable that a single message sent from a
neutral port may under certain circumstances be of
greater service to a belligerent than a vessel equipped
CONTROL OP TELEGRAPH IN WAR. 155
within and sent from the same port to a belligerent.
With the introduction of wireless telegraphy the possibil-
ity of use of a wireless station within neutral jurisdiction
for belligerent purposes is increased. The method of
control is complicated from the fact that wires are not
necessary and direct evidence of transmission of mes-
sages is not easily obtainable.
In 1898, during the Sanish- American war, the British
Government declared that it was " not at liberty to com-
ply with the proposal of the Government of the United
States " to allow an American company to land a new
cable to connect Manila and Hongkong. This decision
has received general approval. If permission to estab-
lish a neutral terminal for a cable connecting with a
belligerent should be refused, then similarly permission
to establish a wireless station should be refused. The
fact that the wireless station was within the Russian
consulate at Chifu did not make the station at that point
set up mainly for war purposes permissible.
The Dutch East Indian authorities during the Russo-
Japanese war of 1904-5 made regulations for the refusal
at certain stations of telegrams —
the contents of which are unintelligible to the Dutch officials, or
telegrams regarding the movements of ships or troops and which
are of interest to the belligerent powers — Russia and Japan.
Telegrams in a language agreed upon, the words of which are
taken from a commercial or other code, may be admitted, pro-
vided the code made use of is submitted to the Dutch officials,
and that the text when translated into open language can cause
no inconvenience.
Sir John Macdonell, writing in July, 1904, says :
% The Institut de Droit International in 1879 adopted a resolu-
tion that in time of war cables connecting neutral countries were
inviolable. At its meeting in Brussels the Institut passed a series
of resolutions which probably express the general understanding
as to what is right and proper. After reaffirming the inviola-
bility of cables connecting neutral territories, the Institut added :
" Le cable reliant les territoires de deux belligerants ou deux
parties du territoire d'un des belligerants peut etre coupe partout,
excepte dans la mer territoriale et dans les eaux neutralisees
dependant d'un territoire neutre.
156 WIRELESS TELEGRAPHY.
" Le cable reliant un territoire neutre au territoire d'un des
belligerants ne peut en aucun cas €tre coupS dans la nier terri-
toriale ou dans les eaux neutralisees dependant d'un territoire
neutre. En haute mer, ce cable ne peut §tre coup6 que s'il y a
blocus effectif et dans les limites de la ligne du blocus, sauf
letablissement du cable dans le plus bref delai possible. Ce
cable peut toujours etre coupS sur le territoire et dans la mer
territoriale dependant d'un territoire ennemi jusqu'a une distance
de trois milles marine de la baisse de basse-inaree."
Few of those who discuss the subject dwell sufficiently upon
the differences between contraband or quasi-contraband and ves-
sels conveying the same and telegrams and submarine cables.
Telegraphic communications may be called quasi-contraband.
But you do not seize a vessel because it may be carrying contra-
band; you do not destroy it if it does; you do not confiscate it
if the owner has acted innocently. Transmitting messages to
belligerents may be likened to breaking a blockade. But the
analogy is faint. You do not destroy vessels which may break
it ; you do not capture them, unless the blockade is effective.
In a maritime war a cable is something sui generis. A bel-
ligerent can not exercise over it any right similar to that of
search ; it may be an instrument of war much more important
than a cargo of contraband or a blockade runner; the fact to
be recognized is that he may be safe only if he cuts it. Th<»
hesitation of States unable to foresee circumstances in which in-
terruption to cable communications might be vital to them is
natural. Looking to what may hang upon telegraphic communi-
cation — traD sports intercepted, a fleet destroyed, the fate of a
campaign affected — it is too much to expect belligerents always to
keep within the four corners of the rules which I have quoted.
There will be circumstances, it may be anticipated, in which they
will not suffer, if they can help it, a telegraphic cable, no matter
who is the owner or what are its termini, to be used to their
detriment. To whatever rules they assent will probably be
added the sacramental formula, " So far as circumstances per-
mit." (56 The Nineteenth Century, p. 148, International Ques-
tions and the Present War.)
Liability of vessels transmitting messages. — The
Japanese Regulations Governing Captures at Sea, 1904,
give a general list of vessels liable to capture :
Art. XXXVII. Any vessel that comes under one of the fol-
lowing categories shall be captured, no matter of what national
character it is:
1. Vessels that carry persons, papers, or goods that are contra-
band of war.
WIRELESS AT CHIFU. 157
2. Vessels that carry no ship's papers, or have willfully muti-
lated or thrown them away, or hidden them, or that produce
false papers.
3. Vessels that have violated a blockade.
4. Vessels that are deemed to have been fitted out for the
enemy's military service.
5. Vessels that engage in scouting or carry information in the
interest of the enemy, or are deemed clearly guilty of any other
act to assist the enemy.
6. Vessels that oppose visitation or search.
7. Vessels voyaging under the convoy of an enemy's man-of-war.
Later these regulations state :
Art. XLVI. Vessels that are recognized to have been fitted out
for the enemy for military purposes, and the goods belonging to
the owners of such vessels, shall be confiscated.
Art. XLVII. Vessels ascertained to have scouted or carried in-
formation to give benefit to the enemy or to have done any other
acts to assist him, and all goods belonging to the owners of such
vessels, shall be confiscated.
Section 5 of Article XXXVII makes liable to capture,
regardless of nationality, " Vessels that engage in scout-
ing or carrying information in the interest of the enemy,
or are deemed clearly guilty of any other act to assist the
enemy," and Article XLVII makes such vessels liable to
confiscation. These regulations would certainly apply to
vessels engaged in transmitting wireless messages of a
character to assist the enemy. Such vessels would then
be liable to capture and confiscation as would the portion
of the cargo belonging to the owners of the vessel, to-
gether with the apparatus.
Wireless telegraphy at Ohifu. — One of the cases of
use of wireless telegraphy during war to which atten-
tion has been particularly given is that of the use of the
station at Chifu during the Russo-Japanese war. The
station at Chifu was within the grounds of the Russian
consulate, which, according to the practice in China, was
entitled to the right of extraterritoriality. The station
communicated particularly with Port Arthur and was
apparently mainly used for war purposes.
158 WIRELESS TELEGRAPHY.
Professor Woolsey says:
Is the toleration of this practice by China an unneutral act?
Precedent or analogy and reason are the lights to guide us in
such an inquiry as this. Now the closest analogy is to be found
in the international status, during war, of the world's submarine
cable system. This, in great part, is equally out of a belliger-
ent's reach; too deep in the sea to be grappled, it equally binds
belligerent and neutral together. There is an international agree-
ment concerning submarine cables, but this provides only for their
protection in normal times. Article XV reads: "It is under-
stood that the stipulations of this Convention shall in no wise
affect the liberty of action of belligerents." What liberty of
action does the belligerent claim? Here the only question in dis-
pute relates to the right to cut a neutral-owned cable running
between hostile and neutral points beyond the three-mile limit of
the neutral state. Rut this does not bear upon the problem of the
wireless, for the new method has no tangible apparatus except at
the terminal points, which are by our supposition, the one hostile,
the other neutral. As for the cable end in neutral waters or
landed on neutral soil, it is absolutely beyond the reach of the
belligerent. Though not subject to force, is it not subject to be
scaled on demand of a belligerent on the ground of neutral obliga-
tion? In other words, is the neutral state bound to prevent one
belligerent from using freely for all purposes a cable landed
within the former's jurisdiction and which the other belligerent is
unable to interrupt?
There seems to be a disposition to impose this burden upon the
neutral. Yet to do so is surely at variance with the entire theory
of neutral obligation hitherto recognized. To carry hostile dis-
patches, to serve as a belligerent transport, for instance, are un-
neutral services on the part of the neutral individual, punished
by confiscation of the vehicle of offense. But it is the belligerent,
not the neutral, by existing usage, who bears the onus of pre-
vention'. The neutral is bound to prevent the use of his territory
as a base of operations, to forbid the fitting out of enemy ships of
war in his ports, but not to restrain enemy's dispatches or diplo-
matic agents or financial agents, all having, it may be, a very di-
rect influence upou the conduct of war. The distinction is
between direct military preparation on neutral soil, like an
armed expedition, and military news or orders, a difference as
wide as the poles. Moreover, if the neutral is held bound to pre-
vent a belligerent's use of a submarine cable between the two —
already in established use — or to allow it only under censorship,
is he not equally bound to limit the belligerent's use of a land
telegraph line establishing similar communication, and would not
neutral censorship of belligerent mails be a duty also? If the
established and safe principle be abandoned, that neutral com-
NEWS-GATHERING AND WIRELESS. 159
merce aud communications are to be as little interfered with as
tbe needs of war allow, with a presumption in favor of greater
rather than less exemption, are we not launched on a path of
neutral obligation which speedily and necessarily leads us to an
absurd and impossible standard? (Wireless Telegraphy in War,
14 Yale Law Journal, 248.)
Further, Professor Woolsey says of the wireless at
Chif u :
If set up and in commercial use before the war, it would be
very hard to stop its use — as being an unneutral service — after
Port Arthur was beleaguered. But it was not so set up. On
the contrary, the wireless connection was devised as the only
available means of enabling Port Arthur to communicate with St.
Petersburg. By it news was sent out and orders returned. It
had especial military value, and no other value. Professor Law-
rence states that the wireless service was abolished by China in
August, but this, I am informed, is an error. Russia nearly to
the end was able to impose her will, in this, as in some other
particulars, upon the Chinese authorities. Nevertheless, in the
light of reason and by the force of analogy, China should have
forbidden this use of her soil to the belligerents from the first.
By permitting it, she has committed a breach of neutrality to the
detriment of Japan. (Ibid, p. 251.)
Wireless telegraphy as a news- gathering agency. — The
words of the correspondent of Tlie Times (London), who
conducted the work of the wireless in the Russo-Japanese
war. are very suggestive. He says, in part:
It was my lot to be intrusted with the system by which The
Times was able on many occasions to publish messages from
points of vantage which were not accessible to the representa-
tives of any other journal in the world. This has now come to
an end. A combination of adverse circumstances, over which it
has no control, has made it necessary for The Times to discon-
tinue its wireless service. Therefore, as wireless telegraphy, as
a journalistic adjunct in the operations of war, has probably been
used under my direction for the first and last time, it may be in-
teresting to the reading public to note the circumstances under
which The Times enterprise was conducted, the success which it
attained, and the ultimate reason of its failure.
*******
Before I left England I determined in my own mind that the
naval campaign would work out very much as the last few
months have proved — that is, I expected that the main interest
for the first six months would center in and about the Yellow
160 WIRELESS TELEGRAPHY.
Sea and the Gulf of Pe-chi-li. This being the case, the existence
of a British possession, situated as is Wei-hai-wei, and connected
directly with the land cable service, stood out alone as the spot
most suited for a receiving station. I therefore decided upon
Wei-hai-wei, although considerable pressure was brought on me
to establish the station elsewhere.
The system was brought to working order, when the
correspondent says:
On returning to Wei-hai-wei I was faced with the announce-
ment that the British Admiralty at Hongkong had classed our
station as a breach of neutrality and had forbidden the navy to
have anything to do with us on any condition. I was also led to
understand that the home authorities were seriously contemplat-
ing an order which would render Wei-hai-wei impossible for us
as a base. As soon as the difficulty was presented to me I stated
the whole case to the commissioner at Wei-hai-wei, with the result
that this officer was satisfied that he could allow the station to
remain without embroiling himself in difficulties with either of
the belligerents.
Late in March of 1904 the correspondent says:
Our apparatus was now working so well that we were begin-
ning to make other uses of it than merely for transmitting news
from the theater of the sea operations. We were now able to
receive both Russian and Japanese messages. These messages
of course came in cipher, and, as we possessed no key, it was im-
possible to make any improper uses of messages thus received,
but we could easily recognize the difference in the system em-
ployed, and by this means — and here another very important
thing in favor of our system was proved — we were able, approxi-
mately, to tell the distance we were from the various ships.
Moreover, our operator, who was extremely expert, began to
recognize the notes of various ships; that is to say, he could tell
if a Russian ship was at sea by listening for the answering com-
munication from the shore. He could also detect whether the
Japanese messages were being transmitted by relay to the naval
base or whether the fleet itself was at sea. This of course was to
us possibly of more value than if we had been able to decipher
the actaal messages sent, and during the period that the Haimun
was in operation during April our most successful issues resulted
from a careful listening for the wireless telegraphy of the oppos-
ing fleets. We listened, and came to conclusions which invariably
correctly guided us in our movements. For instance, if for a
space of six hours on end the Japanese were absolutely silent we
knew that Togo had taken to the sea, for invariably when he
entered upon some enterprise for the time being all wireless
USE BY LONDON TIMES. 161
communication ceased. This being the case, we knew exactly
what course to steer, but even at this period we had not fully
realized how successfully our system had been installed.
In regard to the use of the apparatus, the correspondent
says:
It may be readily understood that we were very careful not to
use our wireless telegraphy until the battle ships themselves
were engaged with the Port Arthur batteries. The reason for this
is obvious. If we had commenced to send news of the position
of the rival fleets, we should have at once interfered with the
wireless telegraphy of both belligerents. This would certainly
have been an unfriendly act, but, although we did not use our own
instrument for sending, we listened attentively. The Russians
were hard at work. They were just repeating the alphabet over
and over again in order to " queer " the Japanese recording in-
strument. In fact, I am not sure, it was not the constant use
made by the Russians of their shore stations that prevented Togo
from coming up in time to catch Makaroff s squadron outside.
There is some discrepancy in the times given when the Japanese
decoy squadron sent its messages to Togo and when Makaroff
decided that he was too far out at sea, and reshaped his course
towards Port Arthur. It was only when the Russians stopped
their " queering " process in order to receive a message from the
Bay an that the Japanese Second Class Cruiser Squadron was
able to get an interval in which to send its all important message.
We received both messages, the Japanese, of course, being in
their own private cipher, that from the Bayan being half in cipher
with a few words in French and signed " B. A." But when once
Togo had hoisted his fighting flag and sailed in under the guns
of Port Arthur we felt that we were justified in sending just a
short message, and so at 9.15 we sent a brief report from within
seven miles of Port Arthur, which furnishes the first record of a
wireless message reporting a naval engagement being sent direct
from the scene of operations to the office of the journal which was
to give it to the public.
We were now working so well that there was no necessity for
us to return to Wei-hai-wei. Later in the evening when the
Japanese had finished sending messages, we were able to send
fuller reports of the day's fighting as we steered a course for
Chinampo. It had so happened that early in the morning the
British sloop Espiegle, returning after wintering at Niuchwang,
saw part of the operations. She arrived in Wei-hai-wei late in
the afternoon and she gave to several correspondents who were
stationed at the British port some news of the engagement. This
was the first news other than that sent via St. Petersburg that
25114—08- 11
162 WIRELESS TELEGRAPHY.
arrived in Europe, with the exception of the short message sent
by ns. I just mention this to show that by means of our wireless
system we saved eight hours, even though the unlucky chance
was against us that the Espiegle happened to be passing at that
particular time.
The use of the wireless system by The Times corre-
spondent on the Haimun was soon after put under
restrictions by both belligerents, and the correspondent
concludes his account by saying :
I maintain that The Times has amply demonstrated the value
and possibilities of wireless telegraphy in conjunction with jour-
nalistic enterprise ; in fact, I am inclined to think that it has dem-
onstrated its uses too well and that the success of the system has
assisted in its downfall. Moreover, I am convinced that it will
ultimately prove that The limes has been the first and last journal
to use wireless telegraphy to report naval warfare. Although I
am positive that in our hands the system was always put to
proper uses, yet the possibilities and the dangers are so great that
lr future the use of all wireless communications during military
and naval operations will be controlled by international law.
(The Times, London, August 27, 1904.)
On April 15, 1904, the Kussian ambassador sent to Sec-
retary Hay the following communication :
I am instructed by my Government, in order to avoid every
possible misunderstanding, to inform your excellency that the
lieutenant of His Imperial Majesty in the Far East has just made
the following declaration :
"In case neutral vessels, having on board correspondents who
may communicate war news to the enemy by means of improved
apparatus not yet provided for by existing conventions, should
be arrested off the coast of Kwantung or within the zone of oper-
ations of the Russian fleet, such correspondents shall be regarded
as spies, and the vessels provided with wireless telegraph appa-
ratus shall be seized as lawful prize."
In reply to the communication, on the same date, Sec-
retary Hay said:
In taking note of this declaration the Government of the
United States does not waive any right it may have in interna-
tional law in the case of any American citizen who may be
arrested or any American vessel that may be seized under it.
(U. S. Foreign Relations, 1904, p. 729.)
RUSSIAN PROHIBITION. 163
The British version does not seem to agree with the
American. Lawrence mentions this and refers to proper
penalties for use of wireless telegraph in forwarding war
news :
On April 20, Earl Percy, the imder-secretary of state for
foreign affairs, in answer to a question in the House of Commons,
gave an account of Admiral Alexeiff's order, which differed by a
very important word from the American version. He spoke of
" correspondents who are communicating information to the
enemy;" whereas the phrase in the Washington telegram ran
" correspondents who may communicate news to the enemy."
There is all the difference in the world between being in a posi-
tion to do an act and actually doing it. If I am left alone in my
neighbor's dining room, I may steal his spoons; but it would be
very hard if that fact alone secured my condemnation on a
charge of larceny. But let us suppose for a moment that in-
formation is actually communicated to the enemy. Then, with-
out reference to espionage, Russia has ample means of punishing
any neutral, whether newspaper correspondent or not, who sends
to the Japanese from the theater of hostilities news of the dis-
positions of the Russian fleet. The law of unneutral service
applies to him. He is in the same position as if he had carried a
dispatch for the enemy, or signaled between two of his squadrons.
His ship and apparatus are justly confiscate, together with all
cargo that belongs to him or to the owner of the vessel. These
severities might surely be deemed sufficient, even if there had
been an actual transmission of intelligence direct to the Japanese
commanders. (Lawrence, War and Neutrality in the Far East,
2d ed., p. 85.)
The translation as appears in the clause of the Wash-
ington telegram cited by Professor Lawrence does not
mention the important reservation of the American ver-
sion, that the prohibition relates to a specific kind of
news, viz, war news. a
a The original French text as communicated by the Russian representa-
tives to foreign states was as follows :
" Je suis charge par mon Gouvernement, afln d'eviter tout malentendu
possible, de communiquer k Votre Excellence que le Lieutenant de Sa
Majeste Imperiale en Extreme Orient vient de faire la declaration
suivante :
"Dans le cas ou des vapeurs neutres, ayant a bord des correspondants
<jui communiqueraient a l'ennemi des nouvelles de guerre au moyen
d'appareils perfectionnes n'etant pas encore prevus par les conventions
existantes, — seraient arretes aupres de la cote du Kuantoung ou dans la
zone des operations de la flotte russe, — les correspondants seront envisages
comme espions et les vapeurs, munis d'appareils de telegraphie sans fll, —
saisis en qualite de prise de guerre."
164 WIRELESS TELEGRAPHY.
According to Scholz, solicitor for the German post-
office, the following principle might be laid down in re-
gard to the use of wireless telegraphy:
A belligerent has the right to prohibit, within the zone of hostili-
ties to be defined by him and publicly announced, the dissemina-
tion of information as to the whereabouts and movements of his
war and merchant vessels, and other warlike measures, by means
of wireless telegraphy on board neutral vessels. Violations
whereby facts requiring secrecy are divulged with the knowledge
or as the result of the negligence of the captain of the ship entail
capture and condemnation of the ship, independently of the fact
whether the ship intended to render aid to the hostile party.
Capture is permissible only within the zone of hostilities, but
there during the entire period of the war.
If the transmission by wireless telegraphy is combined with
acquisition of the information under the aggravating circum-
stances of espionage, the guilty persons are subject to the punish-
ment provided for this offense. (Drahtlose Telegraphie und Neu-
tralitiit, p. 45.)
Of the restriction of the use of wireless equipment by
news-gatherers to a given area, Professor Woolsey says :
A restriction as to the locality within which the wireless sys-
tem of news gathering might operate must also be mutually
agreed on by the belligerents, to be of value, unless control of the
sea lies absolutely in the hands of one of them. In any case, if
respected, this restriction would make it impossible to get any-
thing of value. While if not respected — and could flesh and
blood withstand the temptation — there comes about friction, coer-
cion, the need of constant surveillance, leakage of dangerous in-
formation.
By process of exclusion we reason, therefore, that news-gather-
ing by sea, with the aid of wireless, is of such a nature as to be
inadmissible in warfare, and to require entire prohibition under
penalty of confiscation. It is a service bearing an analogy to the
dispatch boat, the submarine cable, and the war correspondent,
in peculiar combination. The dispatch boat is guilty of unneutral
service in behalf of one combatant and can be confiscated by the
other ; the submarine cable can be cut or worked at the belligerent
end under censorship; the war correspondent, by universal usage,
is only allowed to accompany an army subject to strict regula-
tions. The wireless news-gatherer, combining the dangerous
qualities of all three, should not be permitted at all. (Wireless
Telegraphy in War, 14 Yale Law Journal, p. 254.)
Opinions as to wireless service. — The wireless systems
are not yet fully perfected. Certain systems have been
OPINIONS OF WRITERS. 165
exclusively adopted for a period of years in some states.
The relations of one method of transmission to another
are not yet fully understood. A private individual may
possess an equipment with which he may transmit for
others messages of great importance, or receive or inter-
rupt government messages of great importance.
It is evident that it may not always be possible to tell
the source, the destination, or the significance of a wire-
less message. The attempt to class such messages under
some theory of contraband or violation of blockade would
lead to conclusions which it would be difficult to sustain
by logical processes.
In military operations wireless telegraphy has, since
the South African war, become more and more an estab-
lished means of communication. By it, different portions
of the forces can keep in communication with each other
or with headquarters without the danger that wires may
be cut and while moving from place to place.
The importance and use of submarine cables in mari-
time warfare is materially affected by the introduction of
the system of wireless telegraphy. The regulations which
were growing up in regard to the use of cables cannot in
all respects be extended to cover the use of wireless com-
munication.
Many neutral vessels are now equipped with wireless
apparatus. Neutral ships are permitted with few limita-
tions to navigate freely. The range of wireless transmis-
sion is so extensive that it may usually pass beyond the
possible area of belligerent operations over which the
belligerent has control. The neutral can in an apparently
innocent manner transmit information to a belligerent
and may receive certain valuable information without
being open to criticism. Unlike messages transmitted by
wires, the source and destination of wireless messages are
not easily discoverable. Guilt is not easily fixed.
Thonier speaks of the possibility of introducing the
principle applicable to contraband, saying:
La recente invention de la telegraphie sans fil va rendre souvent
inutile pour le belligerant la destruction des cables qui relient
entre les differents points du territoire ennemi ou le territoire
166 WIRELESS TELEGRAPHY.
ennemi et les pays neutres. La situation creee par ce nouveau
niode de communication est sans analogue et necessite, de toute
urgence, l'etablissement d'uue regleinentation particuliere, afin
de determiner les limites dans lesquelles peut s'exercer les droits
des belligerants d'interdire aux neutres certains agissements
prejudiciables.
II parait d'abord possible d'assimiler les appareils de tele-
graphie sans fil a des articles de contrebande, mais la ressem-
blance n'est qu'apparente. Le motif qui pousse le belligerant a
capturer les marchandises probibees est la certitude qu'elles auront
entre les mains de F ennemi une destination bostile, en raison de
leur nature et de leur destination. La contrebande n'est de quelque
utilite a celui-ci qu'autant qu'il l'a en sa possession. Tel n'est
pas le cas des appareils de telegrnphie sans fil places a bord des
navires neutres. lis sont utilises indirectement par l'ennemi, sans
passer par ses mains, sans parvenir meme a son territoire, sans
perdre leur caractere de propriete neutre et en continuant a
faire partie integrante de 1'armement du navire neutre.
Le caractere illicite de ces batiments neutres ne peut meme pas
etre determine par leur direction ennemie, qui constitue un cri-
teriuni absolument insutfisaut parce que contradictoire et variable.
Tantot, en effet. la direction ennemie est Buivie dans le but d'aider
l'adversaire a renouer ses communications interrompues, tantot
elle cache l'intention nuisible pour ee meme ad versa ire d'an-
noncer au monde les mouvements de ses escadres ou de ses troupes
et d'intercepter ses depeches confidentielles.
Ce serait done plutot en se fondant d'abord sur le devoir des
navires neutres de ne pas aider L'ennemi et de ne pas se mettre
a son service, puis sur la faculte pour le belligerant d'empecher
tons les actes des navires neutres de nature a mettre obstacle a
l'exercice de son droit de guerre que les belligerants pourraient
s;.isir les navires neutres pourvus d'appareils de telegrapbie sans
fil. Si les neutres ont le droit de voir respecter leurs proprietes et
meme leurs transactions avec les belligerants. ils ont, nous l'avons
vu, le devoir correlatif de ne pas entraver les operations de
guerre de ces derniers. Or, ils portent gravement atteinte au
droit de libre belligerance des nations en lutte en s'immiscant
ainsi directement dans les hostilites. (De la Notion de Contre-
bande de Guerre, p. 334.)
He further says:
II nous semble que ce droit de saisie pourrait s'exercer dans
deux cas :
1° Lorsque le navire neutre porteur d'appareils de telegrapbie
sans fil se trouve assez procbe du theatre des hostilites ou du
territoire de l'un ou de l'autre belligerant pour pouvoir se servir
INTERRUPTION OF CABLE SERVICE. 167
de ses appareils a leur profit ou k leur detriment. Le perimetre
dans lequel la presence dn navire sera consideree comme illieite
pourra §tre determine d'apres le rayon efficace maximum des
belligerants, soit autour du theatre des hostility's ;
2° Lorsque ce navire neutre se dirige vers le lieu des hostilites
ou vers le territoire des belligerants. (Ibid., p. 336.)
Scholz maintains that —
A neutral power is bound to watch carefully that through the
wireless telegraph installations under its authority war dis-
patches, in so far as they are to be considered as transportation
prohibited by international law, are not transmitted, if the neutral
power must assume, in view of the situation of local conditions,
that its installations will be used for such dispatches. Generally
speaking, the duty to refuse private dispatches written in cipher
does not exist. A neutral power is neither authorized nor bound
by virtue of its neutrality to subject the official dispatches of
another power to censorship.
When a shore or ship station for wireless telegraphy has come
into hostile power, a neutral power which knows this to be the
case and undertakes to correspond with such station is bound to
regulate any censorship going beyond the provisions of the fore-
going paragraph in such manner as to have private telegrams in
cipher refused. It is further bound to urge any private company
in interest which may be established within the territory under
its sovereignty to adopt such censorship. (Drahtlose Telegraphie
und Neutralitat, p. 9.)
In the Naval War College lectures in 1901, after citing
some of the bases for interruption of cable service, it is
stated that —
Another element in the cable operation is such as to make it
possible to bring the act, under certain circumstances, within the
limits of what is now termed unneutral service, which includes
the knowing carriage or repetition of messages of the enemy by
a neutral. If this principle is to be generally recognized, and it
doubtless must be if wireless telegraphy becomes widely practica-
ble, then the transmission of messages by cable is one of the
means by which unneutral service may be most easily rendered,
and provision must be made to check it. The neutral landing
place of the cable would be the seat of an act of the nature of an
unneutral service as truly as a vessel which, on the high seas,
repeats a message of a belligerent at one point to his fellow-
belligerent at another point, more or less distant, with a view to
aiding him, either for pay or for reasons of friendship. While
the neutral landing place of the cable can not be seized any
more than can the neutral ship if it be within the neutral juris-
diction, the act in either case can be a subject of protest, and if
168 WIRELESS TELEGRAPHY.
continued may be a basis for damages. If the cable be one con-
necting with the belligerent territory it may, outside of the
neutral jurisdiction, be interrupted. Of course a cable between
two neutral points can not perform such service, and is therefore
not liable to interruption. (Wilson, Submarine Telegraphic
Cables in their International Relations, p. 23.)
Rolland discusses certain points in regard to the use of
wireless telegraphy.
He says:
Dans l'hypothese d'une guerre maritime, ces solutions restent
vraies mais elles ont besoin d'etre completees. II convient en
eflet, ici encore, de donner k chaque belligerant les moyens
d'assurer le respect de ses defenses. II doit, par suite, d'abord
Jul etre possible de visiter les navires neutres de nianiere a\
s'assurer qu'ils ne servent pas k correspondre par telSgraphie sans
fll. Mais faut-il aller plus loin? Lorsqu'il s'agit du transport
de correspondances postales, on admet gene'ralement que, si le
belligerant trouve sur un navire de commerce neutre des depeches
prohibees, il a le droit de confisquer et les depeches et le navire.
II n'y a d'exception que pour les paquebots postaux places dans
une situation particuliere a cause qu'ils participent a un service
public international. Pareillement, lorsqu'il s'agit des depeches
telegraphiques transmises par cable sous-marin, on reconnait
assez generalement au belligerant, sur le territoire duquel le
cable vient aboutir, le droit de restreindre ou de couper la com-
munication. On lui permet meme de rompre les cables aboutis-
sant chez son adversaire au cas de blocus ou de contrebande de
guerre.
II convient, nous semble-t-il, de poser en notre mati&re des
regies assez voisines. Le navire neutre visite a-t-il enfreint la
defense de correspondre par telegraphie sans fil, le belligerant
peut d'abord lui interdire de rester dans sa zone d'op§rations.
Xous pensons m§me qu'il est en droit de confisquer, tout au
moins de mettre sous sequestre, les appareils de telegraphie dont
est muni le navire. Par la, il donne une sanction efficace a sa
prohibition en meme temps qu'il en assure le respect dans
l'avenir. Les navires neutres n'ont au surplus rien a dire s'ils
ont ete avertis de l'interdiction de communiquer. Ceci s'applique,
bien entendu, lorsque les depeches transmises etaient innocentes.
II va de soi que s'il est demontre que les mouvelles transmises
par telegraphie sans fil par ce navire neutre etaient destinees
ft fournir k l'autre belligerant des renseignements relatifs k la
conduite des hostilites, on peut aller plus loin. Dans ce cas, le
navire neutre s'est mis en quelque sorte au service d'un bellige-
rant. L'autre a le droit de confisquer et le double des depeches
et les appareils et le navire lui-meme. Ici encore, cependant, il
faut faire une exception pour les paquebots postaux. De ceux-ci,
HOLLAND 'S OPINION. 169
la participation a un service international a une telle importance
qu'elle ne doit point etre ralentie. Le belligerant ne peut done
que saisir le double des depeches et ecarter le navire de sa zone
d'ope>ations. (La telegraphie sans fil et le droit des gens.
(13 Revue Generate de Droit International Public, 1906, p. 86.)
Holland also says in case of a station in a neutral state,
but not belonging to it, from which wireless messages are
sent :
En principe, l'Etat neutre doit presumer que les emissions
d'ondes faites soit d'un hotel d'ambassade, soit d'un navire ancre
dans un de ses ports, n'ont pour but que de transmettre des de-
peches privees ou les correspondances adressees par l'ambassa-
deur d'un belligerant a son gouvernement. Toutes ces de'peches
sont innocentes, il faut done les laisser passer. Le principe est
hors de doute, mais il ne faut pas oublier non plus que l'Etat
neutre est oblige de s'abstenir de toute immixtion dans les hostili-
ty. Surtout il convient de rappeler qu'il ne doit pas souffrir qu'un
belligerant se serve de son territoire comme point d'appui pour
ses operations militaires. A supposer done qu'il soit deniontre
qu'un navire neutre ou belligerant, stationne dans les eaux terri-
toriales, communique par telegraphie sans fil des renseignements
relatifs a la conduite des hostilites a un belligerant, que l'installa-
tion faite d'un appareil de telegraphie sans fil sur un hotel d'am-
bassade n'a manifestement d'autre objet que de permettre & une
place assiegee de communiquer avec le dehors, l'Etat neutre se
trouvera tenu d'interdire de telles Amissions.
Que Ton n'exagere pas d'ailleurs la portee de cette derni£re
conclusion. Elle n'est evidemment admissible que s'il est mani-
festo que l'installation telegraphique et remission d'ondes ont
pour objet une veritable participation aux operations militaires.
La chose n'apparaitra pas, en fait, tr§s souvent clairement. Si
des lors il y a la moindre hesitation soit sur la nature des tele-
grammes, soit sur leur destination, on doit les presumer pacifiques
et Ton ne peut plus faire au neutre une obligation de les interdire.
Par ailleurs, l'Etat neutre n'est oblige de formuler une interdic-
tion que si remission d'ondes implique rSellement l'utilisation de
son territoire comme point d'appui. II en est ainsi quand la com-
munication emane d'un hotel d'ambassade, d'un navire & l'ancre
dans un de ses ports ou stationne dans sa mer territoriale, d'un
ballon captif neutre partant d'un point de son territoire. (13
Revue Generate de Droit International Public, p. 89.)
The general matter of transmission messages is stated
as follows:
No overt act could be performed by a neutral in aid of a bellig-
erent more clearly unlawful than the transmission of signals or
the carrying of messages between two portions of a fleet engaged
in concert in hostile operations, and not in sight of each other. It
170 WIRELESS TELEGRAPHY.
makes no difference whether such fleets or squadrons are in ports
of their own country, in neutral ports, or on the high seas, or
whether such signals are transmitted by the neutral directly or
through a repeating neutral vessel. No matter whether such com-
munications be verbal or written, important or unimportant to the
general results of the war, as the criminality of the act depends
alone upon the nature of the service in which the neutral is en-
gaged. The same principle extends to signaling or bearing of
messages between a land force and a fleet, or to the laying of a
cable to be used chiefly or exclusively for hostile purposes.
(Taylor, International Public Law, p. 754, sec. 670.)
In regard to wireless telegraphy it has been said :
Wireless telegraph communications are to be treated like cables.
The belligerents must have the right to interrupt these communi-
cations between portions of the opponent's territory, or between
points of a hostile and a neutral country, by seizing floating
stations — including those belonging to neutrals, which must be
returned subsequently — or by establishing intercepting stations.
(Commander von Uslar, 181 North American Review, 187.)
Scholz, speaking of the penalty for transmission of
wireless messages, says:
Finally, the contraband and blockade law, with its positively
formulated legal consequences, can not be applied analogously to
cases where it is less a question of commercial traffic than of
direct interference with the interests of the belligerents. When
such unneutral interference has taken place, the neutrality has
been forfeited. It is obvious, therefore, that the ship can not
acquire immunity from punishment upon reaching the nearest
port, still less upon the transmission of the news; otherwise the
doors would be opened wide to violations of neutrality.
On the other hand, unlimited liability to punishment in time of
war is not in harmony with the principles of international mari-
time law. Such unlimited liability would be justified only in
cases where intention of aid to belligerents can be plainly estab-
lished from the ship's behavior. In such cases she acquires the
character of a hostile ship, intended for warlike actions. But
where such intention does not exist, and these are the only cases
to be considered in this connection, the liability of the ship must
be more accurately defined under the international maritime
law in its present shape. The most expedient solution appears
to me to be that according to which the capture of a ship is
permissible only within the " zone of hostilities," but there during
the entire duration of the war. If a ship could acquire immunity
from punishment by leaving this zone, so that she could not be
pursued upon reentering it, it would compel the belligerents to
extend the zone beyond reasonable bounds. It is true that a
OPINION OF SCHOLZ. 171
neutral ship which has her home port in the vicinity of this
zone — which, of course, can not embrace neutral territorial
waters — may be in danger of capture during the whole period of
the war. But it should be remembered that a ship which, notwith-
standing the prohibition issued, lends herself to the unneutral
dissemination of war news is not entitled to the same leniency
as a ship engaged in the pursuit of her commercial interests which
violates the contraband or blockade law. The unneutral dis-
semination of war news is much more closely related to the case
of "prendre part aux hostilites " than to that of prohibited
transportation.
If the solution suggested is not adopted it seems to me that
the only other solution could be to consider the arrival at the
home port as the point to terminate liability, for it would not be
just to the interests of the belligerents if the right of repression
were to cease when the ship reaches the nearest (home or neutral)
waters. But, under this view, which would again permit " saisie
au retour," such a ship might become liable to warlike acts even
in distant oceans. Limitation to the " zone of hostilities " recog-
nizes the idea of the localization of war measures and forms per-
haps the most expedient compromise of conflicting interests.
According to the foregoing, the following principles
might be laid down :
A belligerent has the right to prohibit, within the zone of hos-
tilities to be defined by him and publicly announced, the dis-
semination of information as to the whereabouts and movements
of his war and merchant vessels, and other warlike measures, by
means of wireless telegraphy on board of neutral vessels. Viola-
tions whereby facts requiring secrecy are divulged with the
knowledge or as the result of the negligence of the captain of the
ship entail capture and condemnation of the ship, independently
of the fact whether the ship intended to render aid to the hostile
party. Capture is permissible only within the zone of hostilities,
but there during the entire period of the war.
If the transmission by wireless telegraphy is combined with
acquisition of the information under aggravating circumstances
of espionage, the guilty parties are subject to the punishment pro-
vided for this offense. (Drahtlose Telegraphic und Neutralitat,
p. 43.)
There can hardly be any doubt as to the correctness of the
theory that a neutral power cannot permit its telegraph offices to
be used for the purpose of working harm to a belligerent. It is
true that a neutral power is not bound, generally speaking, to
prevent the exportation of contraband of war by private indi-
viduals, although in the most important cases, according to the
Three Rules of Washington, the contrary is universal law. In
any event a neutral power is bound to watch carefully that it does
172 WIBELESS TELEGRAPHY.
not itself become a carrier of contraband. It cannot use con-
siderations of operation, still less of privacy of telegrams, as a
pretext for permitting the transmission of official telegraphic war
dispatches, any more than it could allege, in case of carrying con-
traband on its national ships, that it did not have to concern itself
with the destination of the articles in question. If such were not
the case, a belligerent could use neutral telegraph installations
without restriction for its war dispatches, so that what is strictly
prohibited by the medium of mail on the sea would be permitted
by telegraph. Hence a certain censorship follows from the duty
of neutrality. (Ibid., p. 7.)
While the privilege of free and uncontrolled telegraphic commu-
nication with their home country, even in time of war, is generally
accorded diplomats and consuls, this privilege is based entirely on
the supposition that the information exchanged between a belliger-
ent power and its representative residing in a neutral country re-
lates to the affairs of the neutral country, hence, that the subject
of it is neutral and does not affect the conduct of the war. That
is not the case where the object is to provide for an invested
fortress communication with the outside world, in particular with
a representative of the home government. In the latter case it is
not a furtherance of neutral interests, but constitutes aid to a
belligerent. (Ibid, p. 15.)
The neutral state is also under some obligation.
When a floating telegraph station is in the service of a neutral
telegraph company and conveys to such company important news
bearing on the war or news obtained by way of espionage, and
the company disseminates such news, the neutral state, upon
learning of the case, would be bound to interfere. But what the
state is bound to prohibit is not the unneutral manner of obtain-
ing news outside of its sovereign territory, but the transmission
and dissemination of such news, injurious to the belligerents,
within the territory under its sovereignty. (Scholz, Drahtlose
Telegraphie und Neutralitat, p. 12.)
Professor Hershey, in a recent book, concludes :
But in view of the possible injury which may result to belliger-
ents from the use of wireless telegraphy on the high seas or on
neutral territory, some concessions should perhaps be made to
military necessity, provided neutral rights and interests are not
seriously impaired. Interference with wireless messages by neu-
trals on the high seas might, under certain circumstances, be per-
mitted by belligerents, as also the seizure and confiscation of
wireless telegraphy apparatus as contraband of war, and neutrals
should certainly refuse to permit the use of their territory for
military purposes. (International Law and Diplomacy of the
Russo-Japanese War, p. 123.)
OTHER OPINIONS. 173
Despagnet says:
Mais il semble difficile de ne pas reconnaitre aux belligerants,
sauf dans les eaux territoriales neutres, le droit de controler ou
meme d'interdire toute communication par la telegraphie sans fil,
soit avec l'ennemi, soit avec le territoire qu'ils occupent ou avec
lours navires, puisqu'ils ont le droit de censurer les depeches
venant du theatre des hostilites ou meme d'eloigner tout batiment
neutre qui gene leur action miRtaire. Par analogie avec ce que
Ton admet pour les cables sous-marins que le belligerant peut
couper meme entre un pays neutre, d'une part, et l'ennemi ou lui-
meme, de l'autre, on doit reconnaitre qu'il peut interdire l'usage
de la telegraphie sans fil dans tout le rayon ou elle peut etre
efficace pour saisir des informations venant soit des armees soit du
pays adversaire. (Droit International Public, 3d ed., p. 848.)
Speaking of the right to restrict the use of wireless
telegraph, Kebedgy says:
Le belligerant pourra exercer ce droit sur le theatre de la
guerre; cela comprend, dans la guerre maritime, la mer littorale
des belligerants et la pleine mer ; cela exclut done la mer littorale
des neutres, ainsi que les parties de la mer conventionnellement
neutralisees.
Ceci etant, les mesures que le belligerant peut prendre pour se
preserver des inconvenients possibles & son egard de l'emploi de
la telegraphie sans fil sont de deux sortes : il peut ou bien l'in-
terdire completement, ou bien la soumettre a certaines restric-
tions. (La Telegraphie sans Fil et la Guerre, 6 Revue de Droit
International, p. 447.)
There is much difficulty in determining the extent of
the area of hostile operations in a manner satisfactory to
belligerents and to neutrals. With the increasing range
of guns this area has correspondingly enlarged. The
speed and endurance of vessels of war has also influenced
the extent of effective control. Effective scouting has
with the system of wireless telegraphy become much ex-
tended. A wireless apparatus may be of great service
even though far removed from the immediate area of
hostilities. The location of the apparatus is not deter-
minable as are the generally fixed termini of the wire
systems. The point at which the wireless equipment may
be is not always the important element in the transmis-
sion of the message. The nature of the service rendered
seems to be the main question. The service may be of
as much or possibly of more advantage to a belligerent
174 WIRELESS TELEGRAPHY.
if the apparatus is several hundred miles distant rather
than near the scene of hostilities, e. g., it may be of great-
est importance for a belligerent whose forces are some-
what separated to know a considerable time in advance of
the approach of the enemy, in order that the separated
forces may be concentrated. To fix an area outside of
which wireless service, whatever its character, is free does
not seem feasible in actual practice.
It is evident that persons who engage in the transmis-
sion of wireless messages cannot properly be regarded
and treated as spies. (See Situation VII, International
Law Situations. Naval War College, 1904.)
It is also evident from the Chifu incident and from the
tendency of opinion that a neutral is responsible to a
reasonable extent for the establishment on its territory of
stations for the operation of wireless telegraphy. The
state can accordingly exercise such control over these
stations as may seem expedient.
Regulations of Institute of International Law. — At the
session of the Institute of International Law in Septem-
ber, 190G, the following regulations in regard to wireless
telegraphy were adopted :
DISPOSITIONS PRELIMIXAIRES.
Article premier. L'air est libre. Les Etats n'ont sur lui, en
temps de paix et en temps de guerre, que les droits necessaires a
leur conservation.
Art. 2. A defaut de dispositions speciales, les regies applicables
a la correspondance telegraphique ordinaire le sont a la corres-
pondance telegraphique sans fil.
Premiere Partie.
etat de paix.
Art. 3. Chaque Etat a la faculte, dans la mesure necessaire a
sa securite, de s'opposer, au-dessus de son territoire et de ses
eaux territoriales, et aussi haut qu'il sera utile, au passage
d'ondes hertziennes, que celles-ci soient emises par un appareil
d'Etat ou par un appareil prive place a terre, a bord d'un navire
ou d'un ballon.
Art. 4. Au cas d' interdiction de la correspondance par la
t£legraphie sans fil, le gouvernement devra aviser immediatemeut
les autres gouvernements de la defense qu'il edicte.
SUMMARY. 175
Seconde Partie.
etat de guerre.
Art. 5. Les regies artinises pour le temps cle paix sont, en prin-
cipe, applicables au temps de guerre.
Art. 6. Sur la haute mer, dans la zone qui correspond a la
sphere d'action de leurs operations militaires, les belligerants
peuvent empecher les emissions d'ondes, meme par un sujet
neutre.
Art. 7. Ne sont pas considered comme espions de guerre mais
doivent etre traites comme prisonniers de guerre, s'ils sont cap-
tures, les individus qui, malgre la defense du belligerant, se livrent
a la transmission ou a, la reception des depeches par telegraphie
sans fil entre les diverses parties d'une arinee ou d'un territoire
belligerant. II doit en etre autrement si la correspondance est
faite sous de faux pretextes.
Les porteurs des depeches transmises par la telegraphie sans
fil sont assimiles a des espions lorsqu'ils emploient la dissimula-
tion ou la ruse.
Les navires et les ballons neutres qui, par leurs communications
avec l'ennemi, peuvent etre consideres comme s'etant mis a son
service, pourront etre confisqu£s ainsi que leurs depeches et leurs
appareils. Les sujets, navires et ballons neutres, s'il n'est pas
elabli que leur correspondance etait destinee a fournir a l'adver-
saire des renseignements relatifs a la conduite des hostilites,
pourront etre ecartgs de la zone d'operations et leurs appareils
saisis et sequestres.
Art. 8. L'Etat neutre n'est pas oblige de s'opposer au passage
au-dessus de son territoire d'ondes hertziennes destinees a un
pays en guerre.
Art. 9. L'Etat neutre a le droit et le devoir de fermer ou de
prendre sous son administration l'etablissement d'un Etat belli-
gerant qu'il avait autoris6 a. fonctionner sur son territoire.
Art. 10. Toute interdiction de communiquer par la telegraphie
sans fil, formulee par les belligerants, doit §tre immediatement
notifiee par eux aux gouverrnements neutres. (21 Annuaire de
l'lnstitut, p. 327.)
Summary. — From practice, as shown in various states,
from the opinions of the courts and of writers, from the
votes of conferences and from international agreements,
it is evident that the state within whose jurisdiction a
wireless telegraph apparatus is or passes, is and will be
authorized to exercise a degree of control over its use.
The responsibility resting upon such state will be large.
176 WIRELESS TELEGRAPHY.
In order to avoid possible complications in time of
war it will be expedient in time of war for states, whether
neutral or belligerent, to exercise control over wireless
telegraphy as circumstances seem to require. There
seems to be good ground for the following general prin-
ciples of action:
1. All private wireless stations within the jurisdiction
of a state shall exist under license and subject to regula-
tion by that state.
2. The private stations within the jurisdiction of a
state may be closed, appropriated, or placed under censor-
ship by the government in time of war.
3. Private vessels of any nationality in time of war
may be required to render inoperative their wireless
apparatus when within or on entering the jurisdiction
of a state, whether the state is a neutral or belligerent,
and the apparatus shall thus remain while the vessel is
within the state's jurisdiction unless otherwise ordered.
4. Private vessels having wireless apparatus and ig-
norant of the declaration of war are entitled to notifica-
tion before any penalty shall be inflicted.
General conclusions. — (a) A belligerent may regulate
or prohibit the use of wireless telegraph within the area
of hostilities.
(b) A neutral state should use reasonable care to pre-
vent within its jurisdiction the unneutral use of wireless
telegraph.
(c) Unneutral use of wireless telegraph on board a
vessel makes the vessel liable to the penalty of capture
by a belligerent, or to confiscation or sequestration of the
apparatus, or of the vessel, or of both by a neutral.
(d) A vessel intentionally aiding a belligerent by the
use of wireless telegraph is liable to penalty until the
end of the war.
O